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MIGRATION - protection visa - decision of Refugee Review Tribunal - "lack of reasonableness as to jurisdiction" - whether failure to be satisfied as to criteria can be judged by standard of reasonableness - whether tribunal's conclusions as to facts against all of evidence, or not based on probative material or logical reasoning

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

NAAH v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 354 (15 November 2002)
Last Updated: 15 November 2002


FEDERAL COURT OF AUSTRALIA
NAAH v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 354


MIGRATION - protection visa - decision of Refugee Review Tribunal - "lack of reasonableness as to jurisdiction" - whether failure to be satisfied as to criteria can be judged by standard of reasonableness - whether tribunal's conclusions as to facts against all of evidence, or not based on probative material or logical reasoning

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 65(1), 91R(3), 474

NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 considered

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 59 at 615 referred to

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 applied

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [127] - [156] discussed

R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407 referred to

NAAH OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 535 of 2002

GRAY, MOORE AND WEINBERG JJ

15 NOVEMBER 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA



NEW SOUTH WALES DISTRICT REGISTRY
N 535 of 2002





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NAAH OF 2002

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT


JUDGES:
GRAY, MOORE AND WEINBERG JJ


DATE OF ORDER:
15 NOVEMBER 2002


WHERE MADE:
SYDNEY




THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's costs of the appeal.

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
N 535 of 2002





ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
NAAH OF 2002

APPELLANT


AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT




JUDGES:
GRAY, MOORE AND WEINBERG JJ


DATE:
15 NOVEMBER 2002


PLACE:
SYDNEY





REASONS FOR JUDGMENT
THE COURT:

The nature of the proceeding

1 This appeal is from a judgment of a judge of the Court, Allsop J. His Honour dismissed with costs an application by the appellant for relief pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (now the Minister for Immigration and Multicultural and Indigenous Affairs, collectively "the Minister"), refusing to grant to the appellant a protection visa, pursuant to the Migration Act 1958 (Cth) ("the Migration Act").

2 Section 36 of the Migration Act provides that there is a class of visas known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom Australia has protection obligations, under the Refugees Convention as amended by the Refugees Protocol. The term "Refugees Convention" is defined in s 5(1) to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term "Refugees Protocol" is defined in the same place to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call those two instruments, taken together, "the Convention". For present purposes, it is sufficient to note that, pursuant to the Convention, Australia has protection obligations to a person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country".
3 The appellant is a citizen of Iran. He arrived in Australia on 24 August 2000. On 5 December 2000, he applied for a protection visa. On 12 February 2001, the delegate of the Minister gave a decision refusing to grant the visa. The appellant applied to the Tribunal for review of the delegate's decision. On 22 June 2001, the Tribunal affirmed the delegate's decision. The appellant applied to the Court for judicial review of that decision, pursuant to s 476 of the Migration Act as it then stood. On 20 August 2001, the Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. On 21 December 2001, the Tribunal, constituted by a different member, again affirmed the decision of the delegate.

4 On 3 January 2002, the appellant applied again to the Court. On this occasion, because of amendments made to the Migration Act in October 2001, it was necessary for the appellant to invoke s 39B of the Judiciary Act 1903 (Cth). This he did by means of his second amended application, filed on 17 May 2002. This application was heard by Allsop J, together with another application, by the appellant's wife, who is designated as NAAG of 2002, on 16 and 17 May 2002. On 5 June 2002, his Honour gave a separate judgment in each of the two matters. See NAAG of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713 and NAAH of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 715. This appeal is concerned with the second of those judgments, although it is necessary to refer to the judgment in NAAG as well, as his Honour's reasons in respect of a number of issues raised were set out in his reasons for judgment in that case.

5 There is no dispute between the parties that the Tribunal's decision is a "privative clause decision" within the meaning of that term as defined in s 474 of the Migration Act. As a consequence, s 474(1) provides that the decision is final and conclusive, must not be challenged, appealed against, reviewed, quashed or called in question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

The appellant's claims

6 The appellant claimed to have a well-founded fear of being persecuted for reasons of political opinion and religion, if he should return to Iran. In summary form, his story was as follows.

7 While studying dentistry in India in 1992 - 1993, he shared a room with an Iranian woman who was either a member or supporter of the Mujahideen-e-Khalq Organisation ("MKO"). While the appellant was attending to his own documents at the Iranian Consulate in Mumbai, an official requested that he assist in discrediting this woman.

8 In 1998, while working part-time at a dentistry clinic in Iran, the appellant had differences with the manager relating to religious issues and because of his refusal to participate in pro-government demonstrations. The manager gave him a hard time. He was forced to leave the clinic and in 1999 went to Ahvaz and later to Tehran.

9 The appellant participated in a demonstration on 8 and 9 July 1999 in Tehran, as a consequence of which he was arrested, beaten, interrogated and threatened, before being released after four days. He resumed his profession but came under further scrutiny by the authorities. He was twice falsely accused of having illicit affairs with women, by a manager of a clinic at which he worked, who was a strong supporter of the Iranian government.

10 The appellant returned to Tehran for a time. He participated in a demonstration against the election of the former president, Mr Rafsanjani, to Parliament, in May 2000. He did not participate in a later demonstration in July 2000, but friends of his did and he learned that the authorities were making inquiries about him again. He arranged to procure a false passport and left Iran.

11 The appellant also claimed that, whilst in Australia, he has become a convert to Christianity.

12 The appellant's claims were summarised by his counsel in a list, described as "key claims". In his reasons for judgment, Allsop J referred to this list as containing twenty key claims. The list provided to the Court on appeal contained eighteen.

The Tribunal's reasons

13 Of the eighteen key claims referred to by the appellant, the Tribunal accepted the following eight:

* The appellant returned to Iran from India and worked as a dentist in clinics in Karaj and Tehran.

* The manager of the Karaj clinic gave the appellant a hard time in relation to religious issues and his refusal to participate in pro-government marches.

* The manager of the Ahvaz clinic gave the appellant a hard time in relation to his views critical of the regime, including accusing him of illicit affairs with two female staff members, in respect of which the authorities exonerated the appellant.

* The appellant participated in the student demonstration in Tehran on 8 and 9 July 1999.

* In consequence of his participation in that demonstration, the appellant was arrested and detained for four days, ill-treated, subjected to two mock executions and released on his undertaking not to repeat his conduct.

* Because his part in the protest was secondary, the appellant's release was not conditional, there were no bail conditions and he was able to return to work (although the appellant complained that the Tribunal did not refer to his claim that the authorities sent reports to the clinic in Ahvaz and to the body responsible for registration and discipline of dentists).

* The appellant did not attend the July 2000 demonstration in Tehran because he did not want to get into trouble.

* The appellant had links to the MKO but they were tenuous links.

14 The Tribunal rejected the other ten claims identified by the appellant as key claims. They were as follows:

* The appellant and others were painting anti-government slogans, including "Death to Khomenei" in association with the 1999 demonstration.

* The appellant was fighting the Basijis (government agents or supporters) in 1999.

* The appellant attended the anti-Rafsanjani demonstration in Tehran in May 2000.

* The appellant's apartment was raided and searched by the authorities, who confiscated documents; the manager of his clinic instigated the raid.

* Among the documents seized in the raid were incriminating documents, including a photocopy of the novel The Satanic Verses.

* The appellant's parents, who lived in the same building, were not arrested because The Satanic Verses was in English.

* The appellant had overlooked the fact that he had in his possession a copy of The Satanic Verses when he returned from India.

* The appellant left Iran with a false passport.

* The appellant placed anti-regime notes in other people's mailboxes.

* The appellant's conversion to Christianity was genuine.

15 The Tribunal expressed its satisfaction that there was not a real chance that the appellant would face persecution in the future because of his attendance at the July 1999 demonstration. It found that, at the time the appellant departed Iran, he was not of adverse interest to the authorities. It found that his only political activity in the past was participating in the July 1999 protest. His participation was spontaneous and commenced after the protest had begun, because he and his friends saw Basijis beating up women and children who were bystanders. The appellant refrained from participating in the July 2000 demonstration not because of the undertaking he had signed on release from detention in July 1999, but because he lacked significant political commitment. He had no significant contact with the MKO. The authorities have no adverse interest in him.

16 The Tribunal was also not satisfied that he would be more active politically in the future if he returned to Iran. There was therefore not a real chance that he would be persecuted for his political views or actions in future in Iran. He did not have a well-founded fear of persecution in Iran on grounds of his political views.

17 The Tribunal was obliged by s 91R(3) of the Migration Act to disregard any conduct engaged in by the appellant in Australia unless it was satisfied that he engaged in the conduct otherwise than for the purpose of strengthening his claim. The Tribunal recognised that conversion of a Muslim to Christianity could be considered apostasy and may be harshly punished in Iran. Because of its findings about the lack of credibility of the appellant's key claims, the Tribunal was of the view that his conversion was not undertaken in good faith, but rather with the express purpose of strengthening his claim for a protection visa. It did not accept that his claimed adherence to Christianity was genuine. In accordance with s 91R(3), the Tribunal therefore disregarded the conversion for the purpose of determining whether the appellant was entitled to protection. The Tribunal also said that it followed that the Tribunal was not satisfied that, if the appellate returned to Iran, he would continue to observe Christianity or attempt to proselytise.

18 The Tribunal also found that the appellant would suffer no more than verbal harassment as a result of applying for asylum in Australia.

The grounds of application to the Court

19 In his second amended application, the appellant challenged the constitutional validity of s 474 of the Migration Act on the basis that it purports to oust the judicial power of the Commonwealth and is inconsistent with s 75(iii) and s 75(v) of the Constitution. He contended that s 474 is not effective to oust judicial review of an administrative decision made by a Commonwealth officer where the ground for review is "lack of reasonableness as to jurisdiction", failure or constructive failure of jurisdiction, or denial of natural justice in respect of jurisdiction. He contended that the decision under review was made in excess or usurpation of jurisdiction and is reviewable for lack of reasonableness as to jurisdiction, failure or constructive failure of jurisdiction, or denial of natural justice in respect of jurisdiction. In the alternative, he claimed that the Tribunal's decision was reviewable for breach of an inviolable pre-condition to the exercise of jurisdiction.

The reasons of the learned primary judge

20 In his reasons for judgment, Allsop J did not deal in detail with the appellant's arguments as to the correctness of the Tribunal's rejection of ten of the appellant's key claims. His Honour expressed the view that it was not appropriate to deal with the matter as if s 474 were not in the Migration Act. For reasons that his Honour gave in NAAG, he rejected the attack on the validity of s 474 and held that s 474 protects a decision under the Migration Act unless one or more of the three provisos expressed in the judgment of Dixon J in R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598 at 615 is applicable. His Honour held that the reasons for decision of the Tribunal and the attacks on them did not justify a conclusion that the Tribunal lacked bona fides in undertaking its task, and no such attack was in fact made. It was unnecessary for his Honour to decide whether a denial of procedural fairness occurred, because such a defect on the part of the Tribunal would not take its decision outside s 474. The decision was plainly one which related to the subject matter of the legislation and was reasonably capable of reference to the power given to the Tribunal under ss 414 and 415 of the Migration Act. It did not transgress any limits existing within the Migration Act, including s 474.

The appellant's grounds and arguments on appeal

21 The notice of appeal challenged Allsop J's conclusion that the Tribunal's decision did not transgress any limits existing within the Migration Act, including s 474. It asserted that his Honour should have held that s 474 was not effective to oust judicial review of the Tribunal's decision, where the ground for review was lack of reasonableness as to jurisdiction, failure or constructive failure of jurisdiction or denial of natural justice in respect of jurisdiction and that the Tribunal's decision was made in usurpation or excess of jurisdiction and was reviewable on each or any of those grounds. Alternatively, the notice of appeal raised breach of an inviolable pre-condition to the exercise of jurisdiction on the same grounds. In any event, the notice of appeal raised the contention that it was illegal for the Minister, his delegate, or the Tribunal, to make a decision where jurisdiction was not obtained by valid satisfaction as to requisite jurisdictional facts, and that such jurisdiction was not so attained by reason of the same grounds.

22 Written submissions filed on behalf of the appellant sought to raise the question of the constitutional validity of s 474 of the Migration Act. On the hearing of the appeal, counsel for the appellant recognised that the judgment of the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 precluded him from arguing these matters. Indeed, the majority of the Full Court expressly approved the reasoning of Allsop J in NAAG. See Beaumont J at [107], [111] and [229] and von Doussa J (with whom Black CJ expressed his agreement) at [637]. Counsel for the appellant conceded that, if the Court were to follow NAAV, it would be obliged to dismiss the appeal.

23 The High Court of Australia has reserved judgment in proceedings designated in that Court as S 134 of 2002 and S 157 of 2002, in which issues of the constitutional validity (and, inevitably, the construction and ambit) of s 474 of the Migration Act have been raised. Because of the impending retirement of one judge of the High Court, it is likely that judgment in those cases will be delivered within a relatively short time. It is possible that NAAV, and Allsop J's reasoning in NAAG on the question of constitutional validity, will be overturned. Counsel for the appellant therefore sought an adjournment of the hearing of the appeal until after the High Court judgment becomes available.

24 Simply to dismiss the appeal on the basis of counsel's concession that that was the result dictated by NAAV would no doubt lead to an application to the High Court of Australia for special leave to appeal. Such an application would be made in a case in which there was no finding, either at first instance or in this Court, on whether the appellant had managed to make out any of the grounds he advanced in support of the proposition that the Tribunal's decision was subject to jurisdictional error of one form or another. To adjourn this appeal pending the outcome of the cases in the High Court would have been to cause inconvenience and expense. Accordingly, the Court invited counsel for the appellant to argue the grounds on which, in the absence of s 474 of the Migration Act, he could establish that the decision of the Tribunal should be set aside.

25 The starting point for the argument is the concept labelled by the appellant's counsel as "reasonableness as to jurisdiction". This was derived from what was said by Gummow J in Minister for Immigration & Multicultural Affairs v Eshetu [1999] HCA 21 (1999) 197 CLR 611 at [127] - [156]. From that passage, which was conceded to have been obiter dicta, counsel for the appellant drew the proposition that, where a decision-maker's jurisdiction is predicated upon satisfaction as to a particular matter or matters, unless the decision-maker is reasonably satisfied as to those matters, there is no jurisdiction to exercise the relevant power. Further, failure to be reasonably satisfied will be established either where the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way and the decision went the other way, or where the satisfaction of the decision-maker was based on findings or inferences of fact which were not supported by some probative material or logical grounds.

26 On that basis, counsel for the appellant attacked the rejection by the Tribunal of the appellant's ten key claims. With respect to some, he argued that the Tribunal's rejection of the claims was contrary to the evidence. With respect to others, he asserted that the rejection was based on mere conjecture.

The Tribunal's rejection of the ten key claims

27 It must be recognised that it is much easier to judge the reasonableness of a decision-maker's conclusion as to a jurisdictional fact when that conclusion is a positive one than when it is negative. Cases such as R v Connell; Ex parte Hetton Bellbird Collieries Ltd (1944) 69 CLR 407, which expounded the principle that a statute making the decision-maker's satisfaction as to the existence of a particular fact the foundation of jurisdiction were to be construed (in the absence of a privative clause) as requiring satisfaction based on reasonable grounds, concerned decisions based on positive satisfaction as to the threshold issue. Section 65 of the Migration Act is somewhat different. By s 65(1)(a), the Minister (an expression which, for this purpose, includes a delegate of the Minister and the Tribunal) is required to grant a visa if satisfied that a particular applicant has met the criteria there listed. By s 65(1)(b), the decision-maker is required to refuse the visa if not so satisfied. The requirement of satisfaction is applied in respect of the ultimate issue, and not in respect of a threshold fact which, if it exists, would give rise to jurisdiction. In that context, it is relatively easy to see how it might be established that the achievement of the requisite level of satisfaction could be judged against a standard of reasonableness. The question is unlikely to arise at the practical level, however, because the result will have been the grant of a visa. It is much more difficult to see how a failure to be satisfied can be judged according to a standard of reasonableness, because the converse of an unreasonable failure to achieve the level of satisfaction is that a reasonable decision-maker would have achieved that level. For a court to set aside a negative decision on the basis that a reasonable decision-maker ought to have achieved the requisite level of satisfaction on the material that was before the actual decision-maker would be to travel far beyond any of the well-established circumstances in which courts can set aside administrative decisions. In effect, it would be to substitute the court's view of the facts for that of the decision-maker, a course traditionally regarded as not open to courts.

28 With these considerations in mind, it is appropriate to examine the arguments put on behalf of the appellant in support of the proposition that the rejection by the Tribunal of ten of the appellant's key claims was so unreasonable as to cause its ultimate decision to fail to meet the test of an exercise of the jurisdiction given to the Tribunal.

29 In one paragraph in its reasons for decision, the Tribunal accepted that the appellant participated in the student protest in Tehran in July 1999, but rejected his claim that he wrote slogans such as "Death to Khomenei" and his claim that he and his friends were fighting the Basijis. Counsel for the appellant characterised the first rejection as based on the single reason which followed in the same sentence, namely "given his claim that the Basijis were following him and his companions." He drew attention to the fact that the evidence gave no indication of how closely the Basijis were following the appellant and that the Tribunal did not challenge in the course of the hearing the appellant's evidence that he wrote the slogans. He characterised the rejection of the allegation of fighting the Basijis as based on the proposition that the appellant would have received a much harsher punishment than four days' detention. He argued that the evidence provided no indication of what other punishment might have been applied, and pointed to the fact that the appellant was threatened with death by means of two mock executions while in detention.

30 When reference is made to the relevant paragraph in the Tribunal's reasons for decision, a different picture appears. The paragraph reads:

"The Tribunal accepts that the applicant participated in the major student protest in Tehran in July 1999. It is unable to accept that he wrote slogans such as `Death to Khomenei', given his claim that the Basijis were following him and his companions. The Tribunal notes that country information cited at page 15 above to the effect that `outrage' against high-ranking Iranian officials can attract the death penalty, and that punishments of imprisonment, lashes or fines can be imposed for insults against Iranian leaders. Nor does it accept he and his friends were fighting the Basiji. The Tribunal is of the view that he would have received a much harsher punishment than four days' detention for such offences."


31 It is clear that, in rejecting both claims, the Tribunal relied on independent "country" information. It cannot be said that it was unreasonable for the Tribunal to do so. Nor was it unreasonable to take the view that the appellant would have been liable to more severe punishment than he received if he had in fact done what he said he had done. Even though it accepted that there were two mock executions during the appellant's detention, the Tribunal was not bound to find that his punishment was sufficiently severe to reflect the views of the Iranian regime in relation to insults, so that it would be compelled to accept the appellant's evidence on these two issues. It was open to the Tribunal to take the view that, at whatever distance the Basijis might have been following the appellant and his companions, they would have been unlikely to run the risk of detection if they were to paint slogans.

32 It must also be observed that the ultimate conclusion on this aspect of the appellant's claims, the Tribunal's satisfaction that there was no real chance that the appellant would face persecution in the future because of his attendance at the July 1999 demonstration, was also based on other material. This included: its view that the mock executions were ad hoc acts by the authorities at the detention centre and were not indicative of future behaviour towards the appellant; the absence of further repercussions for the appellant; independent information that most of those arrested as a result of the demonstration were released immediately, or shortly afterwards on bail, and that the authorities were mainly interested in the leaders and organisers; the appellant's acknowledgment that he had a secondary part in the protest; that his release was not conditional and he was not required to post bail; that there were no further sanctions by the authorities; and that the appellant was able to return to work at the dental clinic.

33 The Tribunal's rejection of the claim that the appellant had attended the anti-Rafsanjani demonstration in Tehran in May 2000 was said by counsel for the appellant to have been for two reasons. The first was that the Tribunal had not seen evidence of such protests in Tehran. Counsel for the appellant drew attention to a BBC news item, dated 22 May 2000, to the effect that a demonstration was held in Tehran on or shortly prior to that date, ostensibly to mark the third anniversary of President Khatami's election but involving the chanting of slogans hostile to Mr Khatami's predecessor, Mr Rafsanjani. The second reason was that the Tribunal found that it was "implausible that although he did not want to get into trouble in July 2000, he nonetheless attended a demonstration in May 2000, just a month earlier." Counsel for the appellant argued that, in between May and July 2000, the appellant's apartment was raided and incriminating material was removed by the authorities. The Tribunal had ignored this possible cause of a change of mind on the part of the appellant as to the wisdom of being involved in demonstrations.

34 In fact, the Tribunal's treatment of the issue of the May 2000 demonstration was somewhat more involved. It referred to reports it had seen of elections in February and May 2000 in which Mr Rafsanjani had been elected narrowly and had resigned shortly afterwards, apparently to avoid further recrimination. It was in this context that the Tribunal said that it had not seen evidence of public protests in Tehran over the issue. The BBC news report was not before the Tribunal, so it could hardly be said to be unreasonable for the Tribunal not to have relied on it. The reference to any connection between the demonstration reported and Mr Rafsanjani only begins in the fifth paragraph of the item. There can be no suggestion that the Tribunal deliberately overlooked information conflicting with its conclusion.

35 In any event, the Tribunal went on to say that, even if it accepted that such protest activity did take place, it was implausible that the appellant would attend a demonstration in May 2000 when his reason for non-attendance at a demonstration in July 2000 was that he did not want to get into trouble. Further, the appellant did not claim to have had any problems as a result of his claimed attendance at the anti-Rafsanjani protest, so in the Tribunal's view there could be no inference that it was some negative experience at that protest which scared him off attending the July 2000 protest. In other words, the Tribunal addressed itself to the issue of continuity of the appellant's state of mind between May and July 2000. Its approach did not lack logic. It is hardly likely that the Tribunal would have viewed the alleged raid on the appellant's apartment as an incident that changed his state of mind when it rejected his evidence that such a raid had occurred.

36 The next four findings concerned the alleged raid on the appellant's apartment, instigated by the clinic manager, involving the finding of incriminating documents including the copy of The Satanic Verses, overlooked by the appellant as being in his possession, with no consequences for his parents because the book was in English and they did not speak English. The Tribunal devoted five paragraphs of its reasons for decision to an examination of evidence concerning the appellant's relations with his clinic manager. It concluded that the appellant had progressively embellished the claim concerning his bad relationship with the manager in order to explain why he continued working at the clinic and to bolster the consequential claim that it was the manager who engineered the raid on the appellant's apartment. Counsel for the appellant offered no specific criticisms of the Tribunal's reasoning in this respect. The Tribunal then said this:

"The Tribunal is not satisfied that the raid took place. Based on the applicant's evidence, the Tribunal considers there was no reason for the manager to have known that the raiding authorities would find incriminating evidence there. Also, the Tribunal finds implausible the claims that having found such evidence at the house, which belonged to his parents, the authorities took no action against the parents simply because the evidence had been found in the applicant's apartment which was on one floor of the house, and because the parents, having been so instructed by the applicant in case of such an eventuality, in effect placed all blame on him. The Tribunal further notes the claim made at hearing that in any case, if the situation became dangerous his father knew influential people who could help. If this were so, the Tribunal expects that the applicant's father would have enlisted the help of these influential people on behalf of his son.
Moreover, the Tribunal does not accept the claim about the discovery by the raiding authorities of incriminating political notes and `The Satanic Verses' in the applicant's apartment. If indeed the applicant had earlier warned his parents to deny responsibility for whatever he did if accusations were made against him, this implies that he was aware that he might have trouble, such as a raid by the authorities. If this were so, the Tribunal considers that he would have been very careful about not leaving incriminating evidence - the political notes, which the applicant claimed at hearing were anti-regime, and the banned Salman Rushdie book - in his apartment.

Furthermore, the Tribunal is not satisfied that the applicant overlooked `The Satanic Verses' when packing his papers in India for return to Iran. Given the possible consequences of having such a notoriously banned book found among his possessions, the Tribunal considers that he would have been more careful from the outset."

37 Counsel for the appellant criticised this reasoning in a number of respects. He claimed that the appellant's evidence was that he had told his parents after the raid that they should shift the responsibility for anything found onto the appellant, and had not warned them before the raid as the Tribunal found. An examination of the transcript of the hearing before the Tribunal does not make it clear when the appellant claimed to have told his parents that they should cast all responsibility onto him. Counsel for the appellant characterised the Tribunal's view that the appellant would have been more careful with incriminating evidence, including The Satanic Verses, as mere conjecture. It must be remembered that it is notorious that the Iranian regime took such offence at the perceived blasphemy and insults to Islam in The Satanic Verses that it effectively ordered the assassination of the author of that book. The Tribunal was entitled to react with scepticism to a claim by the appellant that he had carried a copy of that book into Iran as a result of carelessness about whether it was among his papers. Counsel for the appellant labelled as conjecture the Tribunal's view that the authorities would have returned to arrest the appellant's parents on discovering what was in his papers. He also referred to a claim of the appellant that the authorities might not have been able to read English, that a number of documents were confiscated and that the appellant's apartment, although in the same building as his parents' home, was separate from that home. Again, it was open to the Tribunal to take the view that the Iranian authorities regarded The Satanic Verses so seriously that, if they had found a copy of it among the appellant's papers, they would have taken action. It is perhaps not surprising that the Tribunal would see the entire story of the raid and the seizure of The Satanic Verses as an invention of the appellant for the purpose of bolstering an otherwise weak claim to have a well-founded fear of persecution.

38 The appellant also characterised as conjecture the Tribunal's rejection of the appellant's claim that he left Iran with a false passport. The Tribunal expressed this conclusion as having been based on the preceding findings and on independent information on Iran, indicating that different checkpoints at the Tehran Airport would make it almost impossible to use an unauthorised travel document to pass through. It also accepted independent information that obtaining a passport requires exhaustive identity checks. To deceive the passport office would require a whole set of manufactured documents. Once it is accepted that the preceding findings were not flawed, as the appellant suggests, much of the basis for criticism of this conclusion disappears. Further, the fact that the Tribunal relied on specified material made it clear that its finding had a proper basis. Counsel for the appellant also referred to the fact that the appellant's wife gave evidence to the Minister's delegate who dealt with her case in relation to the appellant obtaining a passport. There is no indication that this evidence was before the Tribunal in the appellant's case.

39 Counsel for the appellant also characterised the Tribunal's rejection of his claim that he posted anti-regime notes in people's mailboxes as mere conjecture. He suggested that the inference might be drawn that the Tribunal was so disenchanted with the appellant's claims that it would not accept them without substantial evidence to support them. In fact, the Tribunal rejected this claim as recent invention. It referred to the absence of any reference to it in: the appellant's statement of 10 December 2000; his adviser's submission of 4 April 2001; his submission of 11 May 2001; and his adviser's submission of 16 May 2001, in which it was stated that the appellant had nothing further to add to his evidence and claims. In consequence, the Tribunal considered the claim to be an attempt to embellish his claim of political activism in the past.

40 Finally, the Tribunal rejected the appellant's claim of genuine conversion to Christianity. In doing so, it referred to the oral evidence of two witnesses at the hearing, one of whom was a clergyman and the other a representative of the Iranian Evangelical Church who visited the detention centre where the appellant was held. Both expressed opinions favourable to the appellant as to the genuineness of his conversion. In addition, the Tribunal referred to a statutory declaration from a former Iranian legal practitioner resident in Australia and a letter from a clergyman of the Persian Anglican Church, attesting to the appellant's conversion and faith. In addition, there was the appellant's own evidence. The Tribunal relied on its findings about the lack of credibility of the appellant's key claims. It was obviously legitimate for the Tribunal to form a view as to the appellant's credit, based on his statements about other matters, and to use that view in assessing whether it should believe him about his conversion. Counsel for the appellant also said that the Tribunal did not challenge any of the evidence put forward by the witnesses. In fact, it questioned the appellant about why he converted to Christianity and why he rejected Islam. It questioned the other two witnesses as to the same issues. Despite the apparent weight of the evidence, it was a matter for the Tribunal whether it accepted it. Its adverse view of the appellant's credit was obviously so strong that it overcame the evidence in other respects.

41 As the preceding analysis shows, it cannot be said that the Tribunal acted against evidence that was all one way, and in the absence of probative material or logic, in rejecting any of the appellant's key claims. It must be remembered that the Tribunal accepted eight of those key claims. In rejecting the ones it did, it explained its reasons. It weighed the material it had before it in the light of its understanding of the situation in Iran. It did not act irrationally. Of course, it might have been possible that a more sympathetic Tribunal member might have taken a different view on the material before the Tribunal. That cannot be the test of unreasonableness going to jurisdiction, in the sense contemplated by Gummow J in Eshetu. In the present case, the Tribunal plainly discharged its function in dealing with the issues raised by the appellant.

42 The appellant's case on denial of natural justice was that the Tribunal should have warned him that it proposed to reject his claim in relation to his participation in the anti-Rafsanjani demonstration in May 2000, and to find that his conversion to Christianity was not genuine. It should have given him an opportunity to supply further material, or make further submissions in relation to those issues. This argument is entirely without foundation. Both of the claims concerned were advanced by the appellant and supported by such material as he thought fit, or was able, to provide. In any such case, it is obvious that the claim might be rejected. There was no factor unknown to the appellant used as a reason for rejecting either claim.

Conclusion

43 The appellant's appeal must fail, not only because of the concession that it cannot survive s 474 of the Migration Act, in the light of the conclusions of the Court in NAAV as to that section, but also because, aside from s 474, the appellant has failed to make out any of the particulars of the grounds in his notice of appeal. He has failed to establish that the Tribunal acted so unreasonably as to give rise to a want of jurisdiction, that it failed actually or constructively to exercise jurisdiction, or that it denied the appellant natural justice in a way that undermined its jurisdiction. The appeal must be dismissed. The ordinary rule that costs follow the event should apply and the appellant should be ordered to pay the Minister's costs of the appeal.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.




Associate:

Dated: 15 November 2002

Counsel for the Appellant:
R Killalea






Solicitor for the Appellant:
Ian D Graham & Associates






Counsel for the Respondent:
T Reilly






Solicitor for the Respondent:
Australian Government Solicitor






Date of Hearing:
11 November 2002






Date of Judgment:
15 November 2002


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