FEDERAL COURT OF AUSTRALIA SDAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1051 SDAG v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA No S 78 of 2002 von DOUSSA J ADELAIDE 26 AUGUST 2002 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 78 OF 2002 BETWEEN: SDAG APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT THE REFUGEE REVIEW TRIBUNAL OF THE COMMONWEALTH OF AUSTRALIA SECOND RESPONDENT JUDGE: von DOUSSA J DATE OF ORDER: 26 AUGUST 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is 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 SOUTH AUSTRALIA DISTRICT REGISTRY S 78 OF 2002 BETWEEN: SDAG APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: von DOUSSA J DATE: 26 AUGUST 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) to review a decision of the Refugee Review Tribunal (the Tribunal) made on 27 February 2002. The Tribunal affirmed a decision of a delegate of the respondent Minister not to grant protection visas to the applicant, to his wife (who was also a visa applicant before the Tribunal), to their daughter and to the applicant's mother who is a dependent family member. The applicant, his wife, their daughter and his mother had arrived together in Australia illegally by boat on 20 August 2001. 2 The applicant and his wife made application to the Minister for protection visas. A criterion for a protection visa is that the applicant is 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: see s 36(2)(a) of the Migration Act 1958 (Cth). The expressions "the Refugees Convention" and "the Refugees Protocol" are defined in s 5(1) of the Act. Australia owes protection obligations to refugees. Article 1A(2) of the Refugees Convention defines a refugee as any person who: "… owing to a 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 to it." 3 The present application is brought by only one member of the family unit (the husband), and is prosecuted on the basis that if he gains recognition as a refugee, his wife, their daughter and his mother will also satisfy the criteria for protection visas as members of his family. 4 The decision of the Tribunal was made after Part 8 of the Act was amended with effect from 2 October 2001 by the Migration Legislation Amendment (Judicial Review) Act 2001. The amendment introduced a privative clause in s 474(1) which operates in respect of a "privative clause decision". A decision made under the Act in respect of the refusal to give a visa is a privative clause decision: s 474(2) and (3)(b). Section 474(1) relevantly provides: "(1) 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." 5 It is common ground between counsel that despite the literal words of s 474(1), review of a decision of the Tribunal may nevertheless take place in the limited circumstances recognised by the principles derived from the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615. Those principles recognise three provisos to the operation of a privative clause such as s 474(1) that must be fulfilled before the privative clause has a validating effect on a decision that would otherwise be invalid. Those provisos are that the decision is a bona fide attempt by the decision maker to exercise its power, that the decision relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the decision maker. 6 In the present case, counsel for the applicant contends that the Tribunal's decision was not a bona fide attempt to exercise power, and for that reason s 474 does not prevent judicial review of the decision. Counsel contends that the Tribunal failed altogether to make essential findings of fact on the claims by the husband and the wife, or at least it constructively failed to do so, and that this failure represents a failure to undertake the function of the Tribunal in good faith. Alternatively, it is contended that the failure constitutes a jurisdictional error of the kind identified in Craig v The State of South Australia (1995) 184 CLR 163 and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. 7 The applicant and his wife claimed that they were members of the Sabean Mandean community in Iran, a minority religious faith not formally recognised by the Iranian Constitution. They claimed to have a well-founded fear of persecution in Iran for reasons of their religion and membership of a particular social group, namely Sabean Mandeans. Their asserted well-founded fear rested on three broad bases. The first basis involved a series of events said to have occurred shortly before they left Iran, which involved their former Muslim neighbour. The second and the third basis are related. The second basis rested on experiences which the husband and the wife said that they had personally experienced in Iran as members of the Sabean Mandean community, and the third basis rested on generalised ongoing discrimination experienced by members of the Sabean Mandean community at large in Iran. 8 Before the Tribunal, the applicant said that his neighbour in Iran was a "sadar" in the Pasdaran which he said "translates as rank higher than a colonel in the Revolutionary Army". The applicant's wife became friendly with the neighbour's wife and would visit her. During these visits the applicant's wife was subjected to unwanted sexual attention by the neighbour, even though she was pregnant at the time. When the applicant's wife rejected his attention the neighbour threatened to throw acid in her face and said that he would kill her if she did not do what he wanted. At first she did not tell her husband of the neighbour's behaviour, but when the applicant said to his wife that he had noted a change in the attitude of the neighbour, she informed him of the neighbour's behaviour towards her. The applicant confronted the neighbour about his behaviour. An argument, and then a fight ensued. The neighbour's brothers joined in, and other neighbours broke up the fight. During the incident the applicant became angry and abused the Iranian regime, Ayatollah Khomaini and the prophet Mohammad. 9 Two days later whilst he was on his way home from work the applicant says he was warned that people from the Revolutionary Army were at his house. The applicant's wife takes up the story at this point. She says that three people from the "Passtarens" and the neighbour came to their house and searched it. She was alone with her child in the house at the time. They searched the house and then the backyard. They came back into the house with a bag containing a gun, another small bag of "white stuff", a torn and burnt Koran and a photograph of Khomaini with drawing all over it. This incriminating material had apparently been planted on their property. She said that the Pasdaran had a paper that said her husband had sworn against the prophet Mohammad and as a result his blood will be "shed with immunity". The Pasdaran also said her husband had the gun as he intended to kill the neighbour. The applicant's wife said that they wanted to take her and the child but she begged them not to do so. The Pasdaran then kicked her on the side and she started bleeding, later suffering a miscarriage. She said the Pasdaran told her to let them know when her husband arrived home. As her husband had been forewarned by another neighbour of the search, he did not come home. His wife left their house, and they then stayed with relatives until leaving Iran on the start of their journey which ended in Australia. 10 The applicant claimed that, as he had been accused of threatening to kill a revolutionary guard officer, his wife had a duty to notify the authorities when he returned home. As she had not done so she would be accused also as an accomplice. He and his wife say they now fear that, because of these events, he would be killed or remain for years behind bars if he were to return to Iran. 11 The Tribunal in its reasons for decision first discussed the legislative provisions against which the claims of the applicant and his wife were to be assessed, next summarised the claims and evidence advanced by them, then cited country information about the situation of Sabean Mandeans in Iran, and finally set out its findings and reasons. 12 In the first paragraph of the findings and reasons, the Tribunal commented briefly on evidence received from the mother, and then in the next paragraph immediately expressed an ultimate conclusion in the following terms: "I accept that the applicants are Iranian nationals. I also accept that they were born into the Sabean-Mandean faith and have maintained that faith. I do not accept that the Iranian authorities have any adverse interest in the applicants as a result of the claimed incident a short time before they left. I do not accept that the applicants faced the difficulty they claim prior to departing from Iran. I find this aspect of their claim far fetched and do not accept it is true." 13 Counsel for the applicant argues that the conclusion so expressed displays a number of errors. Counsel posed a rhetorical question: what aspect of the claim is far fetched? Counsel argued that there were several aspects to the "claimed incident", some recounted by the wife and some by the applicant (with support from his wife). Counsel argued that the Tribunal was obliged to consider separately the credit of the applicant on the one hand and his wife on the other hand, and to make specific findings about each of the aspects which in combination constituted the claim. Without such findings it was argued that no proper determination of the merits of the claim could be made. Moreover, merely to describe the claim, or an aspect of it as "far fetched" was, so counsel argued, no reason at all for rejecting the claim. 14 Further, insofar as the rejection of the claim rested on an adverse finding as to the applicant's credit, counsel argued that the Tribunal erroneously took into account its assessment of the mother's evidence to discredit the applicant. 15 I deal with the last of these complaints first. The hearing before the Tribunal at which the applicant, his wife, his mother and a psychologist gave evidence, occurred over three different days. On the first day, the Tribunal member said that he had expected the mother to be present at the hearing room at the Detention Centre. The applicant said he would have liked his mother to be present but her name was not on the list that "they called to come today". The Tribunal member said that he would speak to the mother on another day, to which the applicant said: "My mother does not speak Farsi, she speaks Arabic and she is sick but I would like her to be here and would be met by the member." On the next day when the hearing occurred, the Tribunal had before it a report from the psychologist concerning the mother. It indicated that she had a long standing mental condition. The report included the observation that: "She presents as a considerable therapeutic challenge and I imagine she will be very difficult for the RRT Member to interview. The reliability of her memory, as well as her capacity to concentrate and respond appropriately to questions, has been severely challenged by her suffering these mental disorders, which have been further aggravated by the stressors in her family's current living situation." On the occasion of this hearing, it is apparent from the transcript that the Tribunal had again expected the mother to be present. When the hearing commenced the Tribunal member said that the hearing officer had advised him that the mother was not well, a fact which the migration agent representing the applicant confirmed. The migration agent, echoing the psychologist's report, questioned how reliable the mother's evidence might be. The Tribunal member observed that reliability was a question for him to determine, and said that as the mother was ill she could be called another day. The Tribunal member added that there was also a problem that day about the availability of an Arabic interpreter "as I understand it, in that she is an Arabic speaker, which I don't think we were aware of previously". The Tribunal member then said: "You see, I am just getting the impression a bit that he [the applicant] doesn't want her to give evidence and that is what I am a bit anxious about … I mean, it's remarkable to me that she's been so seriously ill, but it seems that she's not been getting the attention from the psychologist, whereas the other two applicants have been getting plenty of attention, but are not so ill. It's these sorts of things that lead me to wonder whether something is not quite as it should be." 16 Counsel for the applicant contends that these remarks indicate that the Tribunal member had already formed a view which reflected adversely on the credit and motives of the applicant. The mother at the next hearing gave evidence at some length. This led counsel to place significance on the opening paragraph of the Tribunal's findings and reasons. That opening paragraph reads: "In addition to material referred to above I have consider[ed] the reports and oral evidence of the psychologist who has been working with all the family members. I note that the applicant mother gave her evidence without displaying the difficulties predicated in the reports or the evidence of her family. She appeared lucid and became more forceful as the hearing of her evidence proceeded. Also on file is material from the Sabean-Mandean Association and the Woomera-Roxby Downs Catholic Parish that I have considered." Counsel argued that it should be inferred from the Tribunal's observation that the mother was lucid that the Tribunal saw "irrelevantly a malign motive on the part of the applicant to keep his mother out of the witness box by false devices … because she is perfectly articulate, she is perfectly lucid, she got better as the interview went on". Counsel argued that to assign such a motive to the applicant, and then to use it as a basis for discrediting him was not only irrelevant, but wrong. Counsel suggested that the Tribunal's statement on the second day of the hearing was itself based on a misunderstanding of the facts, including the belief that the applicant had not earlier disclosed that his mother spoke Arabic. 17 I have read and re-read the passages of the transcript upon which counsel relies, and have closely considered the submissions, as the error alleged would be a serious one if it were correct. However, I am unconvinced that such an inference should be drawn. On the second day of the hearing, the Tribunal expressed a concern based, I think, more on the content of the recent psychologist's report than on a mis-recollection about the need for an Arabic interpreter. The willingness of the Tribunal to accommodate the convenience of witnesses, and the course of the evidence thereafter does not suggest that any impression which the Tribunal member had at the start of the second day had any continuing influence on him. I do not read the first paragraph of the findings and reasons as implying or indicating that the Tribunal was ascribing to the applicant a malign motive to keep his mother from the witness box. The applicant throughout said that he wanted his mother to give evidence, and insofar as her evidence is useful it lent a measure of support to the applicant's claims of general discrimination suffered by members of the Sabean Mandean community in Iran. In my opinion, the Tribunal's observations in the first paragraph of its findings and reasons are directed mainly to the opinion of the psychologist, expressed in his report, about the reliability of the mother's memory and her capacity to give evidence. It was the psychologist, not the applicant, who suggested there could be limitations on the mother's capacity to be a witness. As the Tribunal member did not experience the difficulties which the psychologist had anticipated it was appropriate that he say so. I understand that paragraph of the findings and reasons as being a statement about the material and evidence which the Tribunal had considered, not as an oblique indication that the weight placed on the mother's evidence is a factor reflecting on the applicant's credit. 18 The submission that the Tribunal failed to address separately the credibility of the applicant on the one hand and his wife on the other hand is, in my opinion, without substance. In saying that "I find this aspect of their claim far fetched and do not accept it as true", I think it is clear that the Tribunal was referring to the "claimed incident a short time before they left". I consider the Tribunal was using the expression "their claim" to refer globally to the total claim which included the three broad components earlier identified, and "this aspect" was intended to identify the basis that related to the events involving the neighbour. In saying that this incident was far fetched, the Tribunal was expressing a conclusion on the credibility of both the applicant and his wife. The Tribunal was expressing disbelief because, in its view, the combined description involving the events alleged was inherently unlikely: see Re Minister for Immigration & Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67] per McHugh J. 19 I am also unable to accept the submission that the Tribunal failed altogether to make essential findings of fact about the neighbour incident, or constructively failed to do so. 20 The ultimate conclusion expressed at the commencement of the second paragraph of the findings and reasons, set out above, was not the totality of the findings and reasons about the neighbour incident by the Tribunal. It was, as I have described it, the ultimate conclusion. However, having expressed that conclusion, the Tribunal went on to make a number of findings that explained it. The Tribunal continued: "I do not accept that the applicant husband fought with a neighbour or offended Islam or that the applicant's neighbours or authorities planted a photo of Khomeni, white powder, a gun and a damaged Koran at their home. I do not accept the claimed powerful neighbour of the applicants would go to such elaborate lengths to frame the applicant husband when it would appear there was already ample evidence and witnesses to convict him of the serious offences of insulting Islam. I find the claim that the applicant husband fought with the neighbour over issues about his 6 months pregnant wife and that he swore against the Koran and insulted Mohamed in the presence of several people including a senior prestigious government official is far-fetched and fanciful. My finding in relation to this aspect of their claim is supported by the additional claim, which is even more far fetched. The applicants claim that some time after the claimed fight someone "planted", for the neighbour and authorities to find at the applicant's house, a gun, 'white stuff', a torn and burned Koran and a drawn on photo of Khomeni. I am satisfied that if his powerful neighbour wanted to arrest the applicant husband for making offensive remarks about Islam he would have arranged to do so immediately upon the offence being committed and not waited two days. Further if authorities had found such significant evidence in the family home I do not accept that they would fail to arrest the applicant wife rather than just kick her and leave saying that she must tell them if her husband returns. Despite substantial physical evidence found in her house the applicant wife went to hospital and later departed Iran with no further contact from authorities. I do not believe this incident occurred." 21 The Tribunal has therefore explained the basis for its conclusion and in doing so has made a number of findings of fact about the component parts of the claim based on the neighbour incident. In my opinion the Tribunal has sufficiently and meaningfully set out its reasons for decision and findings on material questions of fact as required by s 430 of the Act. I do not think the Tribunal has fallen into error, jurisdictional or otherwise, in the performance of its fact finding role. Moreover, I think the conclusions which it has reached on the facts were open on the information before it. At the most, I think that the criticisms levelled at the Tribunal involve no more than a challenge to the merits of the factual findings. This Court has no jurisdiction, even apart from s 474(1), on an application for judicial review to embark upon a merits review. The facts, including findings as to credit, are matters for the Tribunal, not this Court: Attorney-General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35 – 36 per Brennan J. 22 Having rejected what appears to have been the central basis for the claim of the applicant and his wife, the success of their visa applications depended upon the Tribunal's findings and evaluation on the remaining two bases, namely a fear of persecution based on specific discrimination experienced by them because of their religious faith and membership of the Sabean Mandean community, and a fear of persecution based on the general discrimination they were likely to experience as members of that community. Again, the decision of the Tribunal is attacked on the ground that it failed to make specific findings of fact about instances of discrimination, both specific and general, raised by the applicant and his wife, and instead based its conclusion only on the country information. That conclusion was, in short, that whilst Sabean Mandeans face discrimination in a number of respects in Iran, the discrimination could not be characterised as persecution. 23 I do not accept these submissions. With a few exceptions, the discrimination described by the applicant and his wife was discrimination of a general kind experienced by them in common with other members of the Sabean Mandean community. The exceptions involved complaints by the wife that when she was at school she had suffered discrimination, and in one instance became involved in a fight with another student which resulted in a broken and bloodied nose, a complaint that she had experienced difficulty enrolling her child at a school, and that the applicant had become upset when he visited a Sabean Mandean cemetery and found broken gravestones and rubbish on the graves – desecration which he blamed on the Muslim community. Insofar as their claims were based on the general discrimination experienced by the Sabean Mandean community at large, it is hardly surprising that the Tribunal took into account country information. The findings which it made about discrimination, whilst based on the country information, also accorded with the information given by the applicant and his wife. 24 I think it is incorrect to say that the Tribunal made no findings in respect of the acts of specific discrimination about which complaint was made. In my opinion the Tribunal, by inference, accepted those complaints, and it was on that basis that it did "not accept that this claim gives rise to a well-founded fear of persecution". The Tribunal referred to the wife's complaint of difficulty in enrolling a child at school, and the difficulties during her own schooling. I think it was on the implied acceptance of these complaints that the Tribunal said: "I accept that Sobbis face some discrimination in the education system and in the community generally, however, the country information referred to above which I accept, indicates that Sobbis get on well with most other Iranians. The evidence of the applicant husband that he travelled, worked and lived generally without difficulty in Iran is consistent with this country information." 25 In my opinion the Tribunal did not fall into error in failing to make necessary findings of fact in respect of allegations of the applicant and his wife about past and likely future discrimination. After referring to the complaints of specific discrimination made by the applicant and his wife, the Tribunal set out its findings about the situation of Sabean Mandeans based on the country information. The Tribunal then gave reasons for its failure to be satisfied that the discrimination which the applicant and his family would be likely to suffer as Sabean Mandeans in Iran constituted a real chance that they would encounter serious harm which could be characterised as persecution. That conclusion expressed a qualitative assessment of the country information. As such it was a conclusion of fact. In my opinion the conclusion reached by the Tribunal was open on the material before it and does not reflect error. 26 For these reasons I consider the application fails. The applicants have not demonstrated the errors by the Tribunal which are the bases for the contention that the Tribunal failed to undertake its function in good faith. In accordance with usual practice, costs should follow the outcome of the application. The application is dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa. Associate: Dated: 26 August 2002 Counsel for the Applicant: Mr G Barrett QC Solicitor for the Applicant: Refugee Advocacy Service of South Australia Counsel for the Respondent: Mr K Treadrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 29 May 2002 Date of Judgment: 26 August 2002