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MIGRATION - protection visa - whether Refugee Review Tribunal's decision affected by actual bias - whether tribunal made finding on facts - observation that facts "implausible"

SAAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002]

SAAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 307 (11 October 2002)
Last Updated: 14 October 2002


FEDERAL COURT OF AUSTRALIA
SAAE v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 307


MIGRATION - protection visa - whether Refugee Review Tribunal's decision affected by actual bias - whether tribunal made finding on facts - observation that facts "implausible"

SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 688 applied

W148/00A v Minister for Immigration & Multicultural Affairs (2002) 185 ALR 703 referred to

SAAE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 92 OF 2002

COOPER, CARR & FINKELSTEIN JJ

11 OCTOBER 2002

MELBOURNE (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 92 of 2002




On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:
SAAE

Appellant


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent


JUDGES:
COOPER, CARR & FINKELSTEIN JJ


DATE OF ORDER:
11 OCTOBER 2002


WHERE MADE:
MELBOURNE (HEARD IN ADELAIDE)




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA



SOUTH AUSTRALIA DISTRICT REGISTRY
S 92 of 2002




On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:
SAAE

Appellant


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent




JUDGES:
COOPER, CARR & FINKELSTEIN JJ


DATE:
11 OCTOBER 2002


PLACE:
MELBOURNE (HEARD IN ADELAIDE)





REASONS FOR JUDGMENT
THE COURT:

1 The appellant is from Iran. He seeks asylum in Australia. He made an application for a protection visa claiming that he was a Convention refugee. He said that if he were required to return to Iran he would face persecution on account of his imputed religious views. A delegate of the Minister was not satisfied that the appellant was a refugee and refused to grant him a visa. An application to the Refugee Review Tribunal to review the delegate's decision was unsuccessful. An application to review the tribunal's decision by a judge of the Federal Court also failed. Now we have the appeal from the judge's decision.

2 The appeal proceeded in two stages. When the appeal was called on the appellant appeared in person. Despite the difficulties created by the appellant's inability to speak English and by the very nature of the application, the appeal was heard. However, as there was some prospect that the appellant might receive pro bono assistance, he was also given leave to file further submissions in writing. It turns out that assistance was provided and both sides filed additional submissions.

3 Before we consider the grounds of appeal it is convenient to set out briefly the basis upon which the appellant put his claim for refugee status to the tribunal. The appellant is a Shi'a Muslim. While in Iran he had a Baha'i girlfriend and because of this relationship he learnt a good deal about the Baha'i religion. In Iran, members of the Baha'i religion are considered to be apostates whose practices are suppressed. They are subjected to serious harassment and are sometimes illegally detained and occasionally killed by government forces.

4 One evening the appellant went to a friend's party and stayed overnight. In the morning he received a telephone call from his brother telling him not to come home. His brother said that three armed `officers' in civilian clothes (presumably from the government) had come to the house looking for the appellant. The men searched the house and found a video film about a Baha'i congress and a book about the Baha'i faith, both of which had been given to the appellant by his girlfriend. The appellant met his brother and father and it was agreed that it was too dangerous for him to remain in Iran, so he left the country illegally and found his way to Australia.

5 Since his arrival in Australia the appellant has been in immigration detention. During this period, the appellant considered that he now had the freedom to choose the religion that most appealed to him. He became a Christian, learning about that religion in classes he attended at the detention centre. This resulted in his acceptance as a catechumen in the Catholic Church, though he has not yet been baptised.

6 In substance the appellant claims that he fears persecution in Iran for three reasons: (1) Because of his association with the Baha'i religion; (2) Because he is now a Christian; and (3) Because he left Iran illegally.

7 The first claim was rejected by the tribunal because it did not believe the appellant's story. In particular the tribunal did not believe that the appellant had a Baha'i girlfriend who had given him a film and book about her religion. The reason the tribunal rejected his evidence was because "the account of how the [appellant] came to meet this girlfriend was not coherent". The tribunal briefly explained why it had formed that view.

8 The appellant's claim to be a member of the Christian faith was also rejected. The tribunal accepted that the appellant had been studying Christianity while in detention and apparently had done reasonably well in acquiring knowledge of that faith. But the tribunal was of the view that the appellant "has taken an interest in Christianity primarily with a view to founding a protection visa claim". Thus the tribunal was not satisfied that the appellant's interest in Christianity would "endure beyond the conclusion of the refugee determination process". Importantly the tribunal said that it was not satisfied that the appellant "would maintain his interest in Christianity if he returned to Iran".

9 The tribunal also considered whether the appellant might face persecution if the Iranian authorities became aware that he had professed to the tribunal that he was a Christian, or because of his illegal departure from Iran. According to the country information that was before the tribunal there was not much danger that the appellant would be persecuted for those reasons. The tribunal acknowledged the possibility that the appellant might be questioned or even verbally harassed by Iranian officials if they were aware of his professed Christianity, but found that this treatment would not be sufficiently serious to constitute persecution. Likewise, even if the appellant was punished for having left Iran illegally, the tribunal said that this would not be motivated by any Convention reason.

10 At trial the appellant's principal complaint about the tribunal's decision was that it was biased against him; that is to say that the tribunal had prejudged his claim. The judge rejected this allegation. We think he was correct to do so.

11 In SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 688 von Doussa J pointed to the difficulties that confronted a person seeking to establish that a decision-maker had brought a closed mind to a case. von Doussa J said that "a finding of actual bias against a decision maker is a grave condemnation of the ability of the decision maker to discharge his or her functions with impartiality." He went on to say "it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision."

12 These are precisely the difficulties that confront the appellant. All he can point to are findings of fact with which he does not agree. That does not provide any foundation for the assertion that the tribunal was biased. As von Doussa J explained, at the very least it would be necessary to show, "that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed." In that event the findings may form the basis of an inference of bias. Usually, however, in the absence of other evidence which demonstrates that the decision-maker had prejudged the case, an allegation of bias will not be made out.

13 What we have here are findings made against the appellant, which on their face do not seem at all unreasonable. There is nothing in the reasons themselves which suggests that the tribunal had prejudged the appellant's case. Nothing has been pointed to in the course of the hearing before the tribunal from which it might be inferred that the tribunal had a closed mind. In all the circumstances it is clear that the appellant's claim of bias is hopeless.

14 The appellant's other complaint concerns the manner in which the tribunal dealt with the factual basis of his claim. The appellant says that the tribunal made no real findings on the facts that he asserted, merely making observations such as that the asserted facts were "implausible" and the like. The appellant relies on W148/00A v Minister for Immigration & Multicultural Affairs (2002) 185 ALR 703 where, by way of obiter, Tamberlin and R D Nicholson JJ said at 717:

"Where the question of credibility is determinative of a tribunal decision, to simply assert that the tribunal considers the applicant's account to be `implausible' or `highly unusual' does not constitute a finding on the question raised. Such expressions are more in the nature of observations or side comments rather than findings. The reasoning process and supporting evidence that forms the basis on which a finding that evidence is rejected should be disclosed and clear findings made in direct and explicit terms. It is not sufficient simply to make general passing comments on general impressions made by the evidence where the issue is important or significant."



15 We do not accept the appellant's characterisation of what the tribunal has done. In its reasons the tribunal set out various asserted facts which it did not accept as true. The tribunal did not accept that the Iranian authorities had found Baha'i material in the appellant's home. The tribunal did not accept that the appellant was a Christian. The tribunal found that the appellant's conversion to Christianity was undertaken primarily with a view to founding his claim for a visa. The tribunal found there to be no evidence to support the conclusion that the appellant would be persecuted for imputed apostasy. The tribunal did not accept that the appellant would be punished because he left Iran illegally, or if he were to be punished, that such punishment would be motivated by any Convention reason. Each finding was supported by an explanation justifying the rejection of the asserted fact. In part the explanation was based upon the independent country information about Iran which was before the tribunal. Otherwise the explanation lay in a line of reasoning which was set out. We think there was no error in the tribunal's approach.

16 The appeal will be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 11 October 2002

Counsel for the Applicant:
V E Lambropoulos






Counsel for the Respondent:
M J Roder






Solicitor for the Respondent:
Sparke Helmore






Date of Hearing:
22 August 2002






Date of Judgment:
11 October 2002


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