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MIGRATION - Application for review of a decision of the Refugee Review Tribunal - applicant an Iranian citizen and member of the Mandean community - Tribunal rejected applicant's claims of persecution - Tribunal failed to address all of the applicant's claims - no pre-judgment of Tribunal member found - jurisdictional error found - jurisdictional error not an available ground for review - application dismissed.

WAEE v Minister for Immigration [2002] FMCA 186 (25 October 2002)

WAEE v Minister for Immigration [2002] FMCA 186 (25 October 2002)
Last Updated: 30 October 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAEE v MINISTER FOR IMMIGRATION
[2002] FMCA 186



MIGRATION - Application for review of a decision of the Refugee Review Tribunal - applicant an Iranian citizen and member of the Mandean community - Tribunal rejected applicant's claims of persecution - Tribunal failed to address all of the applicant's claims - no pre-judgment of Tribunal member found - jurisdictional error found - jurisdictional error not an available ground for review - application dismissed.



Migration Act 1958 (Cth)

Judiciary Act 1903 (Cth) s.39B

WAAJ v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 757

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

NAEJ of 2002 v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FMCA 113

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

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

WABB v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FMCA 94

Craig v The State of South Australia (1995) 184 CLR 163

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

Htun v Minister for Immigration & Multicultural Affairs [2001] FCA 1802

SBBK v Minister for Immigration, Multicultural & Indigenous Affairs [2002] FCA 565

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

Applicant:
WAEE



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 82 of 2002



Delivered on:


25 October 2002



Delivered at:


Sydney



Hearing Date:


14 June 2002



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Applicant in person



Solicitors for the Respondent:


Blake Dawson Waldron



ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 82 of 2002

WAEE


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. In this matter the applicant seeks a review of the decision of the Refugee Review Tribunal constituted by J Vrachnas made on 21 December 2001 affirming a decision not to grant a protection visa under class XA sub-class 785 or 866. The applicant, who is an Iranian citizen and a member of the Mandean community of Iran from the town of Ahwaz entered Australia as an unauthorised boat arrival and was not immigration cleared. He came together with his wife, three sons and his son's fiancee. He is unable to meet the requirements of a grant of a permanent sub-class 866 (protection visa). He was assessed in accordance with the criteria set out in the Migration Regulations for the grant of a visa of sub-class 785 (temporary protection).

2. The application states that the applicant is aggrieved by the Tribunal's decision because:

"He is a person to whom Australia has protection obligations under Conventions and Protocol relating to the status of refugee."

3. The grounds of the application are set out as follows:

"1. Procedure that were required by the Migration Act to be observed in connection with the making of the decision were not observed.

2. That the decision involved an error of law being an error of law involving an incorrect interpretation of applicable law or an incorrect application of law to the facts as found by the person who made the decision.

3. There was no evidence or other material to justify the making of the decision."

4. The matter came before the Registrar on 22 February 2002. The Registrar made orders including the following:

"2. The applicant to file and serve on or before 28 March 2002:

(a) an amended application giving particulars of any grounds or review; or

(b) a written statement setting out the reasons why he considers the decision of the Refugee Review Tribunal is wrong; and

(c) any affidavit upon which he intends to rely at the hearing of this matter."

5. No such documents were filed by the date ordered or by the date of the hearing. The reason for this may have been that the applicant was unable to obtain legal representation.

6. In order to establish the applicant and his family's well-founded fear of persecution for convention reasons the applicant informed the Tribunal and the Minister's delegate that he and his family were members of the Sabean Mandean community and as members of that community his family suffered the following particular hardships:

(a) His daughter had been required to leave Iran and seek asylum in Australia because she was being harassed by a suitor who was a member of the revolutionary guard and a Muslim. This man took steps to require the applicant's daughter to marry him and in fear of that occurring she left the country. She has been accepted as a refugee in Australia.

(b) His son left Iran and was accepted as a refugee in Australia for convention reasons.

(c) The daughter's suitor began to harass the family requiring them to advise him of her whereabouts. When they refused to do so he arranged to have the applicant's wife taken into custody and beaten.

(d) The applicant's younger son was taunted and provoked whilst at school. In a serious incident his hand was cut and his tendons were severed. He was refused treatment in a public hospital and was required to obtain treatment from a private hospital at great expense.

(e) An older son who travelled to Australia with the applicant on the boat had married a Muslim woman which caused ill feeling and, the applicant believed, great danger to him. The son and his wife have now been accepted as refugees in Australia.

(f) The general antipathy of Muslim Iranians to members of the Sabean Mandean minority.

7. The Tribunal did not accept the applicant's story concerning the abduction of his wife. It found that he had embellished or fabricated evidence and that in certain regards his allegations were not believable. In relation to those matters which the Tribunal accepted it was of the view that they did not constitute persecution and that any harassment which the applicant or his family had suffered was not enough to amount to persecution or to provide the applicant with a claim for protection under the convention.

8. The Tribunal set out in some detail its reasons for coming to the conclusions which it did upon the applicant claims. These are contained particularly on pages [CB 221-225]. This applicant like many others faces the problem that he finds it hard to accept what appears to him to be the imposition of the western values of a Tribunal on the content of his submissions. A good example of this might be found at paragraph 3 of page 12 of the Tribunals decision [CB 222] where the decision maker says:

"The applicant's claims have consistently stated that Mandaeans are constantly harassed in Iran and, in their personal circumstances, initially focused on the alleged abduction of the Applicant spouse. The Tribunal found that claim to be inherently implausible. The abduction relates to efforts by a frustrated suitor of the Applicant's daughter to win her hand. At the outset, the Tribunal finds it strange that the suitor would so persistently pursue a non-Muslim, given that he was a member of the Revolutionary Guard/Pasdaran."

9. The Tribunal might think these matters are strange, but it is not living in that society. The applicants clearly do not. This is not to say that the applicants must have been telling the truth, only that the manner in which the Tribunal expressed its reasons for deciding that he did not were culturally alien to the applicant. This is a common problem in cases of this nature.

10. As the applicant was unrepresented I took what I believed to be the correct step of considering carefully the whole of the Court Book and the Tribunal's decision. I found support for this approach in the remarks of Carr J in WAAJ v MIMIA [2002] FCA 757 at [17].

"Where an appellant is unrepresented, Full Courts quite often do not confine themselves to any grounds as drafted but look at the decision of the Tribunal and any other admissible materials to see whether the Tribunal's decision is reviewable and thus whether there was any error of law on the trial judge's part."

11. As it turned out, the matters about which I have concern and which I discuss in this judgment were put to me, in the one case, by the respondent's solicitor, and in the other, by the applicant himself.

12. The respondent pointed out that if an applicant was intending to make a case of lack of bona fides arising out of the decision he might fix upon the extract found in the final paragraph of page 8 of the decision [CB 218]:

"There was further correspondence between the Tribunal and the Applicant following the hearing, largely a consequence of some of the Tribunal's hearing comments. Among other things, the Tribunal has observed a similarity in many cases brought by Mandaean applicants in detention (emphasis added). In particular, it has noted that there has been a very high proportion of claims that relate to real or alleged relationships between Mandaeans and Muslims. That is not an issue on which the immediate case turns. ..."

13. The respondent submits that any argument of bad faith based on this ground should not succeed. He states that the Tribunal had made it clear that the issue raised did not affect the case and that this was pointed out to the applicant in a letter dated 22 November 2001 found at [CB 179]. The applicant relied on what fell from Allsop J in NAAG of 2002 v MIMIA [2002] FCA 713 at [24] which I adopted in NAEJ of 2002 v MIMIA [2002] FMCA 113 at [15]. I accept that submission.

14. I do not believe that the authorities quoted by Allsop J have the effect of excluding from the consideration of bona fides a genuine finding of pre-judgment. Pre-judgment by its very nature lays a decision maker open to the charge of having embarked upon the case with a closed mind and being not open to persuasion (SCAA v MIMIA [2002] FCA 668 at [38]). von Doussa J said at [36]:

"Actual bias arising from pre-judgment involves a state of mind by the decision maker whilst exercising the decision making power that is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented."

15. If this was found to have occurred then the case would be one of lack of good faith and as such reviewable within the principles in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.

16. In order to overcome the hurdle rightly placed in the way of a finding of bad faith arising out of pre-judgment on the part of the Tribunal one must look at all of the available evidence. In this case this must include the letter of 22 November 2001 and the terms of the decision itself. If a decision of a Tribunal states that a matter is not being taken into consideration and then proceeds to consider it or begins to discuss it at length then it would be open to a court to find that the matter had been taken into account (WABB v MIMIA [2002] FMCA 94). But that is not the case here. It appears to have been a remark made at the hearing and resiled from shortly thereafter. Why it appeared in the reasons for decision is unknown. I am not prepared to impute the Tribunal with pre-judgment on the basis of these few words.

17. The matter raised by the applicant gives more cause for concern. It is already noted that he travelled to Australia in the company of his wife and one of his sons who had married a Muslim approximately a month before they left Iran. The applicant stated that the reaction of the local Muslim community to the marriage, particularly the family of his daughter-in-law, had put him in fear of his life if he returned to Iran. This is particularly the case as the son and daughter-in-law have been granted asylum in Australia. This matter is referred to on page 7 of the reasons of the Tribunal [CB 217] in a paragraph which begins as follows:

"The Applicant and his spouse both told the Tribunal they feared they would be killed by Muslims from the Mallah's office because of B*** and S***."

18. This matter is not then referred to again or mentioned in the discussions and findings. That section of the decision deals at great length with the abduction claim, claims in respect of the younger son at his school and the general claims of persecution as a Mandean minority. The concern about his son's marriage completely falls away. The final paragraph of the Tribunal's decision is in the following form:

"In all of the circumstances, the Tribunal finds that the Applicant spouse's claim about her abduction was fabricated and that claims the family was harassed by B*** rejected suitor have also been contrived or broadly embellished. Similarly, the claims regarding the school experiences of the minor Applicants have been embellished, although it is plausible I*** was injured in an accident that arose from some teasing about religion. The Tribunal accepts that the Applicants are members of a minority religion but it is not satisfied that they have any well founded fears of persecution for reason of their religion. Nor do they have well founded fears of persecution for reason of political opinions that might be imputed to them because they have applied for refugee status in Australia. In the absence of other Convention-related claims, the Tribunal is not satisfied that they are persons to whom Australia has protection obligations and it finds that they do not meet that criterion for the purposes of the grant of protection visas."

19. This failure to take into account what the applicant sees as a very important fear of persecution which arises out of inter-marriage would be a matter that would enliven the court's power to overturn the decision of the Tribunal and refer the matter back to be heard according to law.

20. In a much quoted passage Brennan, Deane, Toohey and McHugh JJ said in Craig v State of South Australia (1995) 184 CLR 163 at 179:

"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 powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

21. In MIMA v Yusuf (2001) 180 ALR 1 McHugh, Gummow and Hayne JJ said at 417:

"`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 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."

22. In this case I am of the view that the Tribunal not only ignored relevant material significant to the applicant's claims but failed to address and deal with how the claim was put to it. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked upon (Htun v MIMA [2001] FCA 1802 per Allsop J (with whom Spender J agreed) at [42]).

23. Allsop J considered the decision in Htun in the light of the privative clause s.474(2) Migration Act in NAAG at [58] - [62]. His Honour took the view that:

"For either of these approaches (Htun, W396/01 v MIMIA [2002] FCAFC 103) to remain a valid basis for a jurisdictional attack on a decision of the Tribunal with s.474 in the Act, it must appear, our be able to be characterised, as the failure of the Tribunal to undertake an essential component of its task which it is obligated under the statute to undertake, taking into account the effect of s.474. For my part, I cannot so construe ss. 414, 415 and 474, if there had been displayed, as I think there has been here, a bona fide attempt (albeit inadequate) to undertake the task given by ss. 414 and 415. In those circumstances, I do not see that a failure of the Tribunal to undertake the task in the manner provided for in Htun, supra or W396/01, supra, is inviolable in the sense discussed in R v Coldham, supra."

24. His Honour recognised that Tamberlin J had come to what was essentially the opposite view in SBBK v MIMIA [2002] FCA 565.

25. 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 (supra) and does not approve SBBK (supra). It follows from this decision that I am unable to review this decision on these grounds. 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."

26. The decision of the majority of the Full Bench clearly takes the decision of this Tribunal outside the scope for review and I am therefore obliged to dismiss the application which I do. The applicant must pay the respondent's costs which I assess in the amount of $4,000.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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