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MIGRATION - Review of RRT decision - protection visa - well-founded fear of persecution by reason of religion - whether the Tribunal acted in bad faith in coming to its decision - whether the Tribunal had a pre-determined view.

WAHV v Minister for Immigration [2003] FMCA 10 (7 January 2003)

WAHV v Minister for Immigration [2003] FMCA 10 (7 January 2003)
Last Updated: 3 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAHV v MINISTER FOR IMMIGRATION
[2003] FMCA 10



MIGRATION - Review of RRT decision - protection visa - well-founded fear of persecution by reason of religion - whether the Tribunal acted in bad faith in coming to its decision - whether the Tribunal had a pre-determined view.



Migration Act 1958 (Cth), ss.91R(1)(a), 474

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

WAAG v Minister for Immigration [2002] FCAFC 228

SBBS v Minister for Immigration [2002] FCAFC 361

SBAN v Minister for Immigration [2002] FCAFC 431

Applicant:
WAHV



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 181 of 2002



Delivered on:


7 January 2003



Delivered at:


Sydney



Hearing date:


7 January 2003



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Ms V Lambrapuros



Solicitors for the Applicant:


Phillips Fox



Counsel for the Respondent:


M J Allanson



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4000 in accordance with Part 21 rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


WZ 181 of 2003

WAHV


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. There are two applicants in this matter, a mother and son, who are citizens of Iran. They arrived in Australia on 19 March 2001. On

20 March 2001 they lodged an application for protection (Class XA) visas with the Department of Immigration. On 4 April 2001 a delegate of the minister refused to grant protection visas. The applicants sought review of that decision which was given to them by the Refugee Review Tribunal on 20 September 2001.

2. That decision was set aside by the Federal Court on 23 April 2002 and the matter was referred back to the tribunal differently constituted for further consideration. The second tribunal provided the applicants with a further hearing and came to a decision on 5 July 2002. The decision the tribunal made was to affirm the original decision of the minister's delegate. The applicants now seek judicial review of the second tribunal decision.

3. The two applicants follow the Sabean/Mandean religion. They are part of a minority living in Iran, many of whom have made their way to Australia and sought asylum. Some have achieved that status, others have not. In this particular case it is the male applicant who asserts a well-founded fear of persecution for convention reasons. It would appear from a reading of the papers that his mother's concerns are so closely intertwined with his own that her position stands or falls with his.

4. The applicant was a jeweller. He did military service from 1995 to 1997. His father was also a jeweller. In 1993 his father's shop was robbed. His father made complaint to the police. The complaint implicated the son of an intelligence officer. The complaint resulted in an investigation which did not assist the applicant's father. He was allegedly tortured and because of his treatment decided to move from the town they currently lived in to Ahvaz. There were difficulties in Ahvaz in obtaining a licence to trade as a jeweller but it does appear that his father continued in that industry. Bribes were paid.

5. During the applicant's military service he encountered an unsympathetic officer who attempted to convert him to Islam. He resisted. The applicant claims he was assaulted and placed in detention. He did not obtain promotion and was treated badly. The applicant's father died in July 1997 and the applicant decided to take over his business. He was also refused a licence. He also paid a bribe. He was able to operate the business for some time but after a period it was closed down. He appears to have run foul of Mr Khaziravi, a local authority officer who had power to issue or not issue licences of this type.

6. Finally, in 1998 the applicant was in his own home when members of the religious police came and searched it. At first he told them to go away because they did not have a search warrant. There is some dispute as to whether they all then went away or whether some remained and others went away but the fact is that they did return later and search his house. There they found some alcohol. This resulted, according to the applicant, in his being accused of selling alcohol and making Muslims go astray and his detention for about four or five days during which time he was mistreated.

7. He claims he was so badly mistreated that he received nerve damage in his ears. Eventually, after paying a bribe he was released and he left the country, going to Qatar. The applicant worked for a while in Qatar and then worked for a while trading gold between Teheran and other places in Iran. He was consistently refused the necessary licences to enable him to trade with ease. Eventually he decided to leave. He obtained the assistance of a people smuggler and arrived in Australia by boat. Although he did not say so at his initial interview, he claimed that he was wanted by the government because of his confrontations with Mr Khazaravi that if he returned to Iran he would be in danger.

8. The Tribunal considered all the matters raised by the applicant and in its grounds and reasons at [CB 269] said:

"I am of the view that significant aspects of the applicant's evidence are internally inconsistent, implausible and inconsistent with the independent evidence. I am of the view that the applicant has considerably exaggerated and embellished some aspects of his claims and has fabricated others. I am of the view that he has done so in an attempt to bring himself within the definition of a refugee. Overall, I do not consider the applicant to be a reliable witness."

The Tribunal then follows that statement with several pages of analysis of the various claims made by the applicant. At [CB 277], the Tribunal notes the test it used to consider whether or not the applicant had a well founded fear of persecution for convention reasons. It makes reference to s.91R(1)(a) of the Migration Act 1958 (Cth) ("the Migration Act"). At pages 278 and 279, the Tribunal deals with some evidence provided on behalf of the applicant. The imposition into the Migration Act of s.474 (the privative clause) has severely restricted the avenues open to an applicant to impeach a decision of the Refugee Review Tribunal.

9. It is now accepted that the only relevant ground would be if the Tribunal did not enter into its task in good faith. This is the first of the so-called Hickman exceptions propounded by his Honour Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. Various members of this court and of the Federal court have considered cases in which a lack of bona fides has been argued. Now, in two separate decisions of Full Benches of the Federal Court, SBBS v Minister for Immigration [2002] FCAFC 361 and SBAN v Minister for Immigration [2002] FCAFC 431 the phrase has been given further consideration.

10. In SBBS v Minister for Immigration [2002] FCAFC 361, the Full Bench set out between [43 and 47] a number of propositions which discuss the elements of lack of bad faith. What is agreed with by all is that bad faith is a serious matter not to be pursued without proper consideration and contains within it the type of conduct which is not to be asserted against a Tribunal lightly. In this case, the applicant argues that the Tribunal had predetermined issues contrary to the interests of the applicant. He argues that the Tribunal started out and persisted with the view that the applicant did not have a well-founded fear of persecution for convention reasons.

11. He supports that argument by giving examples of areas in which the Tribunal did not show that it had taken into consideration arguments put by the applicant or his then advisers. In SBAN v Minister for Immigration [2002] FCAFC 431 the Full Bench at [10] described actual bias as:

"A state of mind so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented, it is something more than a tendency of mind or predisposition."

12. In WAAG v Minister for Immigration [2002] FCAFC 228 one of the cases considered with SBAN v Minister for Immigration [2002] FCAFC 431 I decided, at first instance, that the Tribunal there had evidence of a closed mind by asking questions, which I felt revealed a pre-formed template into which the Tribunal considered all homosexual males would fit and that if an applicant who claimed to be homosexual did not respond appropriately to those questions he must, ipso facto, not be a homosexual.

13. This was not an approach sustained by the Full Bench. They took the view that what I considered to be evidence of a closed mind was no more than "a perfectly legitimate fact-finding technique for an administrative decision-maker." It would seem to follow from those views, expressed by a court which would bind me here, that the applicant would have to come up with something very strong to satisfy me that the Tribunal had entered into this particular decision with a pre-determined view of the situation of the applicant.

14. I am unable to so find. A close reading of the 44-page decision of the Tribunal indicates to me that the matters raised by the applicant were given consideration and that the Tribunal came to a view about them which it was open to the Tribunal to come to. There is incongruity between the fact that some Sabean Mandeans manage to clear the hurdle of the immigration process and some do not, but every case must be dealt with on its own merits.

15. The fact that one Tribunal considers the type of discrimination received by these people as being sufficient to constitute a well founded fear of persecution for Convention reasons and another does not, does not make the negative view wrong, certainly it does not make it subject to review. In all the circumstances I am unable to find that the Tribunal entered into this decision with a lack of bona fides. I think, in fairness to the Tribunal itself, I should say that there is no evidence of this whatsoever.

16. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $4000 pursuant to the Federal Magistrates Court rules.


I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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