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MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant claimed fear of persecution arising out of her betrothal as a Muslim woman to a man of the Sabean Mandean religion - allegation of jurisdictional error - no grounds for review - no lack of bona fides found.

SDAF v Minister for Immigration [2002] FMCA 187 (30 August 2002)

SDAF v Minister for Immigration [2002] FMCA 187 (30 August 2002)
Last Updated: 4 September 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SDAF v MIMIA
[2002] FMCA 187



MIGRATION - Application for review of decision of the Refugee Review Tribunal - applicant claimed fear of persecution arising out of her betrothal as a Muslim woman to a man of the Sabean Mandean religion - allegation of jurisdictional error - no grounds for review - no lack of bona fides found.



Migration Act 1958 (Cth) s.474

Craig v South Australia (1995) 184 CLR 163

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1

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

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

SAAG v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 547

SCAA v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 668

Applicant:
SDAF



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ 133 of 2002



Delivered on:


30 August 2002



Delivered at:


Sydney



Hearing Date:


19 July 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Ms G Brown appearing pro bono



Solicitors for the Applicant:


Refugee Advocacy Service of South Australia Inc



Counsel for the Respondent:


Mr M Roder



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the amount of $3,750.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


AZ 133 of 2002

SDAF


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter the applicant wrongly joined the Refugee Review Tribunal as a respondent to these proceedings (s.479 of the Migration Act 1958 (Cth)). I removed the Tribunal as a respondent with the consent of the applicant.

2. The applicant is an Iranian Muslim woman who arrived in Australia on 20 August 2001 together with her fiance/de facto husband and her daughter. The fiance is an Iranian of the Sabean Mandean religion. The daughter is the daughter of the applicant's previous marriage to a Muslim Iranian. The Tribunal considered that the female member of this party had made the primary claim to DIMIA and she was referred to as "the applicant" throughout the decision which is currently under review. The Tribunal referred to the male fiance as "the husband" and to the minor as "the daughter". I would propose to follow the Tribunal's description of the parties.

3. The applicant sought for herself and her family a protection visa (Class XA Sub Class 785).

4. The applicant's claim for asylum was based upon her alleged well founded fear of persecution arising out of her betrothal as a Muslim woman to a man of the Sabean Mandean religion. Marriages between woman of the Muslim religion and a non-Muslim are forbidden in Iran pursuant to Article 1059 of the Civil Code of Iran. Sexual relations between a non-Muslim man and a Muslim woman is punishable by death [CB 196].

5. The applicant met her husband in Ahwaz where he was living and which is home to a number of members of his minority religion. He provided some assistance to her in relation to finding a ticket from that town to Tehran during the Persian new year period and they became friendly. Sometime thereafter he visited her home town of Hamedan. He stayed in the town for a week during which time he courted the applicant and obtained her family's permission to marry her. The couple bought a ring and an engagement party was held in the applicant's family home. The next day the applicant and her husband visited her sister and brother-in-law who had been unable to attend the party. Whilst they were there they were advised by a member of her family that law enforcement officials acting on the authority of the Revolutionary Court had attended the family home seeking her. She was advised that her former husband had been part of this party although he had not himself come into the house. The couple were recommended to return to the husband's home in Ahwaz where it would be safer. This they did. There were later reports given to them of further action by the Revolutionary Guard including the arrest of the applicant's father who was required to put his house up for security. It was claimed that a document existed which sought the arrest of the applicant for adultery with a non-Muslim person the penalty for which is alleged to be stoning. The applicant was advised to leave the country as soon as possible and this she did together with her husband and her daughter.

6. The Refugee Review Tribunal decided that it was not satisfied that the applicants were persons to whom Australia has protection obligations under the Refugee's Convention as amended by the Refugee's Protocol. They did not satisfy the criteria set out in s.36(2) of the Migration Act for the grant of a protection visa. The applicant seeks review of the Tribunal's decision on the basis that:

"In his approach to the fact finding function the RRT has:

(i) Failed to make relevant findings of fact;

(ii) Where he has purported to find facts he has given no rational reason.

In his approach the RRT has either failed altogether to make findings of fact or has constructively failed to do so. That failure represents a failure to undertake the function of the Tribunal in good faith."

Alternatively

"The failure represents a jurisdictional error identified in Craig v South Australia (1995) 184 CLR 163 and MIMA v Yusuf (2001) 180 ALR 1 and is unaffected by s.474(1) of the Migration Act."

7. The applicant points to seven areas in which she says findings on the evidence are unsustainable on the facts and seven areas upon which no finding of facts on evidence were made. As it is the accumulation of these matters which the applicant argues constitute the lack of bona fides in the Tribunal I will deal with each in turn.

Purported findings on the evidence

a) I do not accept that the applicants encountered the difficulties they claim prior to departure from Iran.

This finding is directly connected to the next which is:

b) I do not accept the claims that the Revolutionary Court issued a document within twelve hours of the engagement party finishing.

And that in turn is connected to:

c) I do not accept that the Revolutionary Court will be so readily involved in a matter of this nature.

8. These findings appear at pages 140-141 of the CB. It seems clear to me that finding No 1 is entirely dependent on findings 2 and 3. These findings are justified by the following statement:

"I make this finding because I do not accept that the Revolutionary Court would act so quickly in a matter that is in any event a breach of the Civil Code and within the jurisdiction of the ordinary courts."

9. The applicant claims there is no factual basis for the assumption made about the speed with which the Revolutionary Court would act and there was no challenge to the applicant and her husband's evidence that this did occur. The applicant claims this is a crucial part of her evidence and that the Tribunal failed to make any finding whatsoever as to whether anything occurred on the day after the engagement party.

10. It was also suggested that one of the reasons why the Tribunal may have come to the conclusion which it did about the speedy action of the Revolutionary Court was because it made a finding that the applicant's ex-husband did not know about the engagement until after it had taken place. As the Tribunal accepted that it was probably the applicant's ex-husband who instigated the actions of the Revolutionary Court the assumption which it came to would have been open to it if that had been the case. But the evidence which the Tribunal would have relied upon was contained in the applicant's written statement at her initial interview. It is clear from a perusal of that document CB7 (actually a statement of the husband) that the reference to "after the engagement" was not connected to the sentence "her ex-husband found out about our relationship". There is a clear space between them and the respondent properly conceded that the Tribunal was likely to have been in error on this point.

11. Absent this evidence the conclusions reached by the Tribunal about the time it might take the Revolutionary Court to act in this matter are not based upon any evidence whatsoever.

12. The next finding which is connected to the third finding above is:

d) I do not accept authorities would have an interest in such matters or find it necessary to arrest her father.

The reason for that statement appears to be that:

"It would appear he has not committed any offence that would interest the Revolutionary Court of officials associated with it."

And

"It would appear the religion of a person marrying has in practice paled into insignificance for the purpose of registration of marriage to such an extent that it is not necessary to raise this issue."

13. The Tribunal also quotes at [CB 141] a country report on the Revolutionary Courts and the matters they were intended to deal with. I accept that that is evidence which could lead the Tribunal to doubt whether or not it was the Revolutionary Court who had issued the documents and caused the house to be searched. But the Tribunal has failed to make a finding on whether the incident happened at all.

14. The fifth finding about which the applicant complains is:

e) I am satisfied that they do not need to have their religion upon registration of marriage.

This finding and the sixth finding that the Tribunal is not satisfied that the fact of their being together while coming to Australia was an issue of concern to the authorities in Iran are connected to the most important finding at [CB 141]:

f) I do not accept that the applicant will be stoned to death for adultery or apostasy.

15. The Tribunal relies heavily on the statement found at [CB 197] which appears after the information that sexual relations between a non-Muslim man and a Muslim woman is punishable by death. This statement is as follows:

"Given the gap between laws and actual practice in Iran, in reality the above punishments appear to be rarely pursued (unless there are political or other reasons to do so)."

16. The Tribunal utilises this evidence as its prime reason for its decision that the applicant does not have a well founded fear of persecution. The evidence is bolstered, according to the Tribunal, by the evidence relating to the registration of marriages. There is no requirement to provide the registry with details of the marriage parties' religion. The Tribunal takes the view that this indicates a lax attitude towards marriage between persons of different religions. In doing this the Tribunal is ignoring the distinction between the registration of a marriage and a law which forbids a marriage between a Muslim woman and a non-Muslim man. Registration appears to involve merely advising a Government official of the existence of a marriage. It does not make an illegal marriage legal. There is no suggestion that the law is no longer in existence.

17. What the Tribunal does find at CB 139 is:

&q;
uot;The evidence indicates that such laws are not enforced and I do not accept that there is any indication that there is a real chance that it would be enforced in the moderately near future. I am not satisfied that the authorities have any political or other reason to do pursue the applicants (sic) and I do not accept that they are at risk for reasons of their marriage."

18. The country information which was provided to the Tribunal does not say that the laws are not enforced. It says they are rarely enforced. It provides an example of when they might be enforced. Given the seriousness of the penalty, one might expect the Tribunal to have indicated what evidence it had for the firm statement which it made. The Tribunal permits itself the luxury of speculation against the interests of the applicant but never considers the alternative.

19. The applicant claims that the Tribunal made no finding of fact on the evidence of:

"(i) Whether the ex-husband's influence or other reasons amounts to political or other reasons to impose the penalty that, according to Country Information, is otherwise rarely pursued;

(i) Whether the ex-husband's influence affected the issuing of the Revolutionary Court document;

(ii) Whether a document was issued at any relevant time by the Revolutionary Court;

(iii) Whether a document was issued at any relevant time by any authority;

(iv) Whether the interest by the authorities in the father was because of the daughter or the applicant and not in the father;

(v) Whether the authorities visited the father at any relevant time;

(vi) Whether since the departure from Iran the authorities have continued to "go after" the father."

20. The applicant submits that the alleged failures of the Tribunal set out above represent a jurisdictional error identified in Craig v South Australia (1995) 184 CLR 163 and MIMA v Yusuf (2001) 180 ALR 1.

21. The respondent in its submissions does not take issue with the applicant's contention that the Tribunal made no finding of fact on the evidence of the seven matters mentioned above. It argues instead that none of the matters referred to by the applicant could give rise to a Yusuf type error as he submits that Yusuf is not concerned with evidentiary considerations.

22. In Craig (supra) at 179 Brennan, Deane, Toohey and McHugh JJ said:

"If an administrative Tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or power. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it."

23. In Yusuf (supra) McHugh, Gummow and Hayne JJ quoted the above passage from the decision of the High Court in Craig and went on at [82]:

" `Jurisdictional error' can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law."

24. I have delayed giving judgment in this matter pending the decision of the Full Bench of the Federal Court in NAAV v MIMIA [2002] FCAFC 228 which was handed down on 15 August 2002. That decision approves of the decision of Allsop J in NAAG of 2002 v MIMIA [2002] FCA 713. The extent of s.474(1) was described by the Chief Justice in NAAV (supra) at [30] as follows:

"I agree that the enactment of s.474(1) has the consequence that an error of law on the part of the Minister or delegate in reaching the satisfaction that operates as a precondition to power to grant and cancel visas under the Act does not result in every case in the decision being invalid. I accept that s.474(1) may be taken to provide the "contrary intent", which gives the administrative decision-maker authority to make a decision otherwise than in accordance with law, referred to in Craig v South Australia (1995) 184 CLR 163 at 179. For this reason, I take s.474(1) to express the Parliament's intention that the Minister's satisfaction is to be taken to exist even if the Minister (or the delegate) has identified a wrong issue, asked a wrong question, ignored relevant material or relied on irrelevant material."

25. The decision of the majority of the Full Bench in regard to Craig or Yusuf jurisdictional errors clearly takes the decision of this Tribunal on those matters outside the scope for review. In so far as the applicant suggested that the decision of the Tribunal was not made bona fide little was put in the way of submissions. I am satisfied, in any event, that the conduct of this Tribunal neither meets the test set by Mansfield J in SAAG v MIMIA [2002] FCA 547 nor falls within the criteria outlined by Von Doussa J in SCAA v MIMIA [2002] FCA 668 at [38].

26. In the circumstances I must dismiss this application. The applicant must pay the respondent's costs which I assess in the amount of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.

27. I note in this matter that the applicant was represented pro bono. It is appropriate that the court should recognise the contribution of members of the legal profession to the efficient administration of justice and the protection of human rights by appearing in these matters on this basis.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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