FEDERAL COURT OF AUSTRALIA Applicant S230 of 2003 v Minister for Immigration and Citizenship [2007] FCA 1574 APPLICANT S230 OF 2003 v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL NSD 967 OF 2007 ALLSOP J 15 OCTOBER 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 967 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: APPLICANT S230 OF 2003 Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: ALLSOP J DATE OF ORDER: 15 OCTOBER 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 967 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: APPLICANT S230 OF 2003 Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: ALLSOP J DATE: 15 OCTOBER 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from orders made by the Federal Magistrates Court on 11 May 2007 dismissing, with costs, an application for review of a decision of the Refugee Review Tribunal (the "Tribunal") made on 5 April 2000 and handed down on 28 April 2000 that had affirmed a decision of a delegate of the first respondent not to grant a protection visa to the appellant. 2 The substance of the argument on appeal was that the Federal Magistrate erred by failing to conclude that the Tribunal failed to deal with a claim articulated within the facts presented. It is therefore necessary to examine the Tribunal decision. 3 The applicant is 27 years old. He is an Iranian who left Iran in December 1996, travelling to Germany and then to Australia where he arrived on 3 March 1997, aged 16. He applied for a protection visa on 26 November 1997. In his written application for a protection visa he said that he "feared being subject to further persecution by the Iranian security forces", that he "fear(ed) being persecuted", that he thought members of the Iranian security forces would harm him, that he had been imprisoned and tortured by the "Pasdar", that he thought he would be harmed because he would "always be suspected of being a supporter of the leftist youth group, 'Peshgham'", that "it is the authorities who will persecute (him)", that his parents had told him on the telephone that after he left Iran "the police would sometimes come to the house and question them regarding (his) whereabouts" and that in this context his "father was taken sometimes for questioning by the Pasdar". 4 Accompanying the application was a nine-page letter from solicitors whose letterhead stated that they were immigration law specialists. The letter contained submissions and factual assertions in support of the appellant's claims. It annexed a three-page document signed by the appellant said to be a "Personal Statement of Claims", together with information from Human Rights Watch and Amnesty International. 5 The signed statement of the appellant told of becoming involved in December 1996, with one of his classmates, in a leftist underground organisation, Peshgham. He said that he distributed leaflets at the encouragement of his friend. After a school holiday break, he said he was picked up at school by three men who drove him away, blindfolded him and took him to a basement where he was threatened and where he underwent interrogation for two months, during which time he was beaten. His father was able to have him released on bail. Upon his return to school he stated that: When I went back to school principal expressed displeasure of our activities and informed me that I have been dismissed dishonourably. This means that I could not enroll in a decent school in Iran nor upon graduation I would be allowed to continue tertiary education. He continued: My expulsion from school depressed me and family so much so my father who has persian carpet business in Iran, promised me to do all in his power to enable me to continue my education so he bought my way out of Iran. In explaining what his situation would be in Iran if he returned, he said: My situation would be a miserable one if I shall be forced to return to Iran much to my great desire to study I will not be permitted to go through tertiary education or be allowed into government jobs or positions. My only hope in having a normal shot at life now lies in the hands of kind Australian migration officers I ask for consideration of my situation and not deny me a chance at life because of my disability. Thank you very much. 6 The statement as a whole, and these parts, contained the claim that he would suffer persecution because of his past activities. Nowhere in the statement was there any statement that he had become an adherent of the leftist group or that facts other than the urging of his friend had led to the activity for which he had apparently been detained. Nowhere in the statement is it said that he will wish to continue with his adherence to Peshgham or like bodies. That is, his statement embodied an expression of fear of persecution for what he had done and had happened in the past (and how he might be viewed because of that), not for what he might do in the future. 7 Conformably with the statement, the solicitors' submissions emphasised the same issue about the continued relevance of past behaviour. The solicitors summarised the claim as follows: [The applicant] is perceived by the Iranian regime as a political dissident. In Iran [the applicant] was a member of the prohibited leftist youth group, the Peshgham. At his school [the applicant] became politically active through involvement in the distribution of illegal pamphlets at his school. However, his activities were discovered by the security/political police, the Pasdar. He was detained in prison for two months where he suffered mistreatment including interrogation and torture. During this time [the applicant] confessed to all political activities he had performed. He was finally released with assistance from his father. When [the applicant] attempted to return to school he was told by the principle [sic] that he was dishonourably expelled. Further, he would be unable to graduate from secondary school and therefore prohibited from tertiary education. [The applicant] cannot continue living in Iran. Denial of education will amount to persecution where it is imposed in a discriminatory manner as a form of political punishment. Having established a record as a political dissident he will always be suspected of continued illegal political activities and at risk of further detention and abuse. There has been no change in circumstances in Iran which would make prospective persecution of the applicant unlikely. We acknowledge that the applicant's claims must be considered with regard to the current political culture of Iran. Hence we refer the decision maker to the following recent accounts of human rights abuses in Iran: 8 The delegate's refusal to grant the protection visa involved an analysis of what had occurred. The delegate stated the following, amongst other things: Even if I accept that the applicant was involved in the political activity claimed and suffered the punishment referred to, it is clear that he took no further part in politics after the new year; that he is now focused on furthering his education and as a consequence will not face further punishment on return to Iran. I see his ability to obtain a passport and pass through the airport in Iran without difficulty as confirmation of my view that the applicant does not have a profile of significance in the eyes of the authorities. 9 It was clear to the appellant from the delegate's decision that there was no consideration of any risk posed from future political activity. 10 The applicant then sought review from the Tribunal. His application for review contained no complaint about the delegate not addressing his present and likely future expression of political views. The applicant said the following in his application for review: The applicant disagrees with the findings of the delegate in the primary decision. The delegate made a number of curcial [sic] findings based on doubts held about the applicant's claims. The applicant was not given any opportunity to clarify these doubts at interview or asked to make written submissions on these issues. An additional statement will be prepared by the applicant and forwarded to the Tribunal in the near future. 11 The same solicitors as had represented the appellant up to the delegate's decision continued to represent the applicant before the Tribunal. On 24 March 1998, they sent a further statement of the appellant "which the applicant has prepared in response to the adverse findings of the Department". That statement contained the following about the delegate's rejection of his claims: Initially [name provided] told me that he is a member of anti-government pro communism group which is a new group formed and name of Peshgam was revealed to me later, it did not take long before we were discovered so I had to discontinue. All I wanted was to help my country regain it's sovereignty from the deadly grip of Islamic fundamentalists who have suppressed our nation in the name of God and do anything they like themselves. The ability to obtain a passport was due to a large sum of money my father spent due to corruption. That exists at government level due to extreme poverty created for general public specially greedy airport personnel who are getting rich on the misfortunes of people like me. I consider myself fortunate that my father could afford to pay such sums of money. Such people know how to manufacture legal documents and even escort you into the plane, obviously money was not shared with everybody. Some agents presented at our door in Tehran asking questions or maybe they knew and wanted more bribe money or trying something that may not be obvious to us on what ground one could say that all of this was a faulty attempt to strengthen my claims Please just think it in this manner, a young boy from a well off family would abandon all pleasure of easy life with mum, dad, friends, relatives, home cooking, lots of money, a comfortable home and nice possessions suddenly decides to leave all of that comfort to live alone especially with a physical disability, in fact, one must think I am going crazy. The fact is that has been stated my family has enough money to pay for my education in Australia like any other foreigner who studies here but I was denied that opportunity because of a medical condition. It seems to be so un-Australian, the land that was built by migrants should discriminate me on this ground. I am actually physically and mentally well developed and the reason for my defect happened during birth. I was born when Tehran was being bombed by Iraqi aeroplanes. My mother slipped from the stairs, dislocating the bone that created this problem for me. Please, I ask you to help me, I have nowhere else to go if I am driven away from Australia. I think God has punished me enough, please help. 12 Again, there was no stated adherence to any political beliefs or statement about a desire to involve himself in politics in the future. 13 The Tribunal held a hearing on 15 February 2000. The transcript of that hearing was placed into evidence before the Federal Magistrates Court. Early in the hearing the appellant was expressing his fears and the following exchange took place: The applicant: One of the things that happened to me is that when I had that problem, when I went back to the school they wouldn't let me study and what's going to happen, I have to face the court and I don't know what the consequences are in that court but I might be sentenced for jail or. Tribunal: Why do you think you'll face a court? The applicant: Because of me being active against Islam. The government did… Tribunal: Why do you think you have to face the court in Iran? The applicant: Because what my dad did, he had a friend and by his help and bail. He got me out of the sort of – I was in sort of a camp and I was there for 2, 2½ months and I was supposed to be there until I'll be executed and I'll have to face the court and what my dad did, he had a friend who was in sort of government and he said that if it was possible he would pay some money to him and sort of money for bail so they would release me until I would face the court. Tribunal: So when were you released from this detention? The applicant: Yes Tribunal: When were you released from this 2 or 2½ months in detention? The applicant: It was around maybe the first or second month of the summer in Iran 1996. [emphasis added] 14 This exchange, it will be seen, was central to the arguments placed before the Federal Magistrate and was the focus of the arguments on appeal. To appreciate its significance, however, it is necessary to appreciate how the Tribunal approached and then dealt with the appellant's claims. 15 The approach of the Tribunal was accurately summarised in the submissions of the first respondent on appeal, as follows: The Tribunal's decision, refusing the appellant's claims of a fear of persecution as not being well-founded, was based on factual findings supported by independent country information. In particular, the Tribunal: · accepted that the appellant distributed pamphlets and was arrested and detained for two months or so, but found that when the appellant was released, the matter was finalised; · found that the fact that the appellant was able to leave the country without hindrance indicated that the authorities had no ongoing adverse interest in him; · found that the appellant failed to apply for protection in Germany, not because he did not find any Iranians to trust (as claimed), but rather because he was not in genuine fear of persecution and it was only when he failed in is attempts to remain in Australia as a visitor or a student that he resorted to a protection visa; · did not accept that the Iranian authorities have any adverse interest in the appellant and was satisfied that he could resume his education should he return; and · even if the appellant was refused further education, he could work for his father, notwithstanding that he did not want to. The Tribunal, accordingly, refused the appellant's application. 16 The two issues canvassed before the Federal Magistrate's Court were: (a) The Tribunal failed to consider a relevant question, namely whether the applicant would continue with his political activities if he were to return to Iran, and if so, whether he had a well grounded fear of persecution as a result; (b) The Tribunal erred in its consideration of whether the applicant was in genuine fear of persecution if required to return to Iran. 17 The Federal Magistrate considered many authorities. Essentially, for the purposes of the first argument, the Federal Magistrate concluded that the Tribunal dealt with all the claims of the appellant, including all unarticulated but revealed bases for claims on the evidence. The Federal Magistrate had regard to the cases discussing the responsibility of the Tribunal to deal with all the claims of the applicant and, though claims are not articulated, with matters when "it is apparent on the face of the material before the Tribunal that a claim exists which will not depend for its exposure on constructive or creative activity": Chan v Minister for Immigration and Multicultural and Indigenous Affairs (2000) 106 FCR 157 at [114]. 18 Between [39]-[50] of his reasons, the Federal Magistrate very helpfully, if I may respectfully say so, extracted and digested the cases on the, at times difficult, distinction between the obligation to deal with unarticulated claims thrown up by the facts and the lack of obligation for the Tribunal to investigate or make a case for the applicant. It is convenient to set these paragraphs out, because they reveal that the Federal Magistrate correctly instructed himself as to the principles: [39] The Full Federal Court in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90said at [8]: "It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 294; and Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 at [24]. It is, however, no part of the Tribunal's function `to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim.' Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13]. [40] The Full Federal Court in MIMIA v VFAY; MIMIA v SHBB [2003] FCAFC 191(French, Sackville and Hely JJ.) said at [97]: "It may be accepted that the RRT should not limit itself to the case articulated by an applicant where the facts found by it, or not negated by its findings, might support an argument that the applicant is entitled to the protection of the Convention: Minister v Applicant S at 371 [73], per Stone J, citing Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38. [41] The principle referred to above in Paramananthan was restated inRamirez v MIMA (2000) 176 ALR 514; [2000] FCA 1000by a Full Federal Court at [29] as: "The tribunal is not bound by the way in which the case is presented. If there is material before the tribunal which raises a basis upon which an applicant might satisfy the Convention criteria, then the Tribunal is obliged to deal with the issue whether or not it is expressly relied upon by the Applicant". [42] Ramirez was followed in SBAB v MIMA [2002] FCAFC 161 by the Full Federal Court: [43] However, the broad principle remains as stated by Tamberlin J in Gnanasambanther v MIMA[2000] FCA 1911at [3]: "There is no duty on the RRT to embark on a general inquiry (emphasis added) into every aspect of the evidence presented on a refugee application if that evidence is not raised, relied on or advanced (emphasis added) by the applicant or the representatives of the applicant. As Gummow and Hayne JJ said in a Abebe v The Commonwealth (1999) 162 ALR 1 at 51: "The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out." [44] The leading authority on the extent to which the Tribunal must consider arguments not expressly advanced by an applicant is NABE v MIMIA (2004) 144 FCR 1. It is not enough that there be a factual error by the Tribunal. To constitute jurisdictional error the claim must be a substantial clearly articulated argument relying upon established facts. At [55] the Full Federal Court said: "Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on a "substantial, clearly articulated argument relying upon established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v MIMIA (2003) 77 ALJR 1088 at [24] and [95]" [45] The reference to S20 is to Re MIMIA; ex parte Applicant S20/2002 (2003) 77 ALJR 1165. [46] The Court endorsed the nature of the review function articulated by Allsop J in Htun v MIMIA (2001) 194 ALR 224 at [42] namely that a review of the decision requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration. This is to be distinguished from errant fact finding. [47] Their Honours said at [58] that the review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it:Chan v MIMIA (2000) 106 FCR 157 at [114]. Their Honours continued: "It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the Tribunal before it has a statutory duty to consider it: SDAQ v MIMIA (2003) 129 FCR 137 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal." [48] Reference was made to the observation of Kirby J in Dranichnikovv MIMIA (2003) 197 ALR 329 that the function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. The Full Court endorsed the characterization of Selway J (a member of the Full Court) in SGBB v MIMIA (2003) 199 ALR 364 at [18]: "The question, ultimately, is whether the case put by the appellant before the Tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it." [49] At [60] the Full Court said this does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it. [50] At [63] their Honours concluded that it is plain enough, in the light of Dranichnikovthat a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. 19 Having so instructed himself, the Federal Magistrate was of the view that the facts did not display any case or claim other than that which was dealt with by the Tribunal. 20 It is that assessment of the material before the Tribunal that was the main thrust of the appeal. The appellant's submissions on appeal dealt with a number of cases, in particular the jurisprudence on Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155. Ultimately, however, the answer to the appeal does not turn on any of these cases. Rather, to paraphrase what Selway J said in SBBG 199 ALR at 285 [18], the issue is whether the case (that is the facts and other claims) put before the Tribunal sufficiently raised the relevant issue for the Tribunal (as a specialist tribunal carrying out an inquisitorial function) to have dealt with it (as an issue or aspect of the statutory review function before it). This question, of course, is in the context of the applicant being possessed of all the personal information bearing upon why he or she has a fear of persecution. If an applicant articulates his or her fears for the future in his or her country of nationality only up to a particular point, it could rarely, if ever, be necessary for the Tribunal to interrogate the applicant as to whether the applicant might not fear return for other reasons as yet unarticulated. Of course, if an applicant's language and communication is poor it may well be important for the Tribunal, in its inquisitorial function, to question the applicant in order to seek to understand what it is that is being sought to be articulated. 21 Mr Byrne, on behalf of the appellant, submitted that the appellant had placed a claim or facts before the Tribunal that he feared persecution by reference to future political activities, or at least raised sufficient ambiguity about that matter to require the Tribunal to ask more questions or investigate before finalising its views. He relied on the transcript that I have quoted earlier. The phrase "because of me being active against Islam". 22 Notwithstanding the able argument of Mr Byrne, I am unable to conclude that the Tribunal failed to complete its jurisdictional task. The framework of the claim put forward, from the original application, was based on his past activities as a school student. The material that I have earlier quoted from the appellant's solicitor and his own statements make no statement of any real political adherence likely to form the basis of future activity. The Tribunal could reasonably expect that these kinds of issues would be raised squarely or with some clarity. The transcript is to be understood as set against all that has gone before. In that context (and deprived of the opportunity the Tribunal had to hear, as opposed to read, the evidence) I would understand the applicant to have been discussing what he had done in the past. 23 Taking Prasad 6 FCR 155 on its face, I see nothing unreasonable in the Tribunal understanding (as the member plainly did) what was said by the applicant as relating to his earlier arrest. 24 Thus, I see no error in the approach of the Federal Magistrate in this respect. 25 The Tribunal also concluded that the appellant has no subjective fear of persecution. This was based on the Tribunal's rejection of the appellant's evidence. If there could be said to be error in the Tribunal in not further investigating the question whether the appellant intended any future political activity, this conclusion on his credit might be vulnerable. However, the absence of error in the approach of the Tribunal in understanding the extent of the appellant's claims, leads to the conclusion that there is no basis to attack this factual finding by the Tribunal. The argument before me proceeded on this basis. 26 These being the only matters argued on appeal, the appeal must be 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 Allsop. Associate: Dated: 15 October 2007 Counsel for the Appellant: Mr L J Byrne Solicitor for the Appellant: Juris Australia Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 August 2007 Date of Judgment: 15 October 2007