VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 89 (13 February 2004)

Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 cited
NAHI v Minister for Immigration and Multicultural Affairs (2004) FCAFC 10 cited
S157 v The Commonwealth [2003] HCA 2; (2003) 195 ALR 24 cited

VQAB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V 461 OF 2003

SUNDBERG J
13 FEBRUARY 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 461 OF 2003

BETWEEN:	VQAB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE OF ORDER:	13 FEBRUARY 2004
WHERE MADE:	MELBOURNE

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 461 OF 2003

BETWEEN:	VQAB APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SUNDBERG J
DATE:	13 FEBRUARY 2004
PLACE:	MELBOURNE

1 The applicant is a citizen of Iran who arrived in Australia on 1 November 1999 without any travel documents. On 6 January 2000 he lodged an application for a protection visa. On 22 March a delegate of the respondent refused to grant the visa. The Refugee Review Tribunal affirmed the delegate’s decision on 21 June 2000. On 6 June 2003, nearly three years later, the applicant sought judicial review of the Tribunal’s decision.

2 The applicant claimed he had a well-founded fear of persecution by reason of his race, religion or actual or imputed political opinion. He claimed to be Kurdish and a Sunni rather than a Shiite Muslim. He said he had graduated from a university in Teheran in 1995 where as a student he attended meetings and conferences during which he and others discussed "issues affecting our people and our dissatisfaction with the situation in Iran". As a result of these meetings the security forces spoke to him, and he was threatened and warned not to organise any more meetings. He said his name was placed on a blacklist, and because of his involvement in political activities against the government he could not get a government job or a passport.

3 The applicant said he attended a demonstration in mid-1999 at the university which extended over four days. He and others broke into the campus with a view to freeing students who had been trapped by the security forces. He and some forty others were arrested and kept for about four hours in a locked room. They were abused and assaulted. The applicant claimed he was identified from a company ID card he was carrying, and that he was released only when a larger crowd of demonstrators confronted the police. He said he then marched in the demonstration and held up placards which were critical of President Khatami. The applicant claimed that after the demonstration he went into hiding for forty days. He said he obtained a false Iraqi passport because Iraqis were free to leave Iran without checks. He left Iran on this passport, pretending to be part of a group of Iraqis who were leaving Iran. Because of this he was not suspected. He did not have the passport with him when he arrived in Australia.

4 The Tribunal accepted that the applicant is an Iranian citizen, is Kurdish and a Sunni Muslim. It was not satisfied that there was a real chance that he would suffer persecution because he is Kurdish and a Sunni. It accepted that he was a student activist, but noted that he was allowed to complete his degree and was able to obtain gainful employment. Although he was denied access to government employment, he "does not seem to have suffered further significant problems from his student activism". The Tribunal was not satisfied that the harm suffered because the applicant was a student activist amounted to persecution.

5 The Tribunal accepted that the applicant took part in a demonstration in Teheran in mid-1999, that he was arrested, and then released by fellow demonstrators. In accepting this part of the claim, the Tribunal gave the applicant the benefit of the doubt, describing his account as "not an especially likely explanation" and "an unlikely scenario".

6 The Tribunal noted DFAT country information (7 February 2000) that DFAT was not aware that either genuine or forged Iraqi passports were available for sale in Iran. The Tribunal quoted this passage from the report:

The Tribunal noted that DFAT did not absolutely rule out the possibility of Iranian citizens leaving on Iraqi passports even by joining groups of Iraqis, and that to that extent the applicant’s claims were not "completely implausible". However the scenario he presented was "clearly most improbable, and quite at odds with the independent information".

7 After noting that the consequences of someone being identified as present at the demonstration were potentially very serious, the Tribunal concluded its reasons as follows:

8 The first ground is that the Tribunal failed to deal with and ignored the applicant’s claim that he had been denied a passport by the Iranian authorities on account of his political activities. This claim was said to be integral to the claim that the applicant had to obtain a false passport and leave Iran under the guise of being an Iraqi. If the first-mentioned claim had been dealt with and found to be true, it was said that it clearly bore upon the issue of whether he needed to and did obtain a passport by other means. This in turn went directly to whether his fear of persecution was well-founded.

9 The Tribunal recorded the applicant’s claim that because of his political activities his name was placed on a blacklist and he was denied access to a government job or a passport. In dealing with the claim that the applicant suffered discrimination and harassment because he is Kurdish and Sunni, the Tribunal accepted that his name was placed on a blacklist that would have precluded him from government employment. There is no finding one way or the other about the claim that being on the blacklist, or having engaged in political activities, precluded him from obtaining a passport. That is not a matter for surprise having regard to the Tribunal’s reasoning process. The Tribunal saw the crucial issue to be whether the applicant had been identified as attending the 1999 demonstration. It is almost certain from the Tribunal’s finding that the consequences of someone being identified as present at the demonstration are potentially very serious, that had it found that the applicant had been identified at the demonstration, it would have concluded that he had a well-founded fear. If he was not identified, he would have had no problem in leaving Iran because of having been at the demonstration. Accordingly the central issue was whether he had been identified. The Tribunal found he had not been. As appears from the passage from the Tribunal’s reasons set out at [7], it found he had not left Iran on an Iraqi passport and had not avoided the usual airport security checks. On the evidence, it was entitled to make those findings. The contrary was not asserted. This led the Tribunal to the conclusion that he had not been identified as being present at the demonstration.

10 Having regard to the Tribunal’s course of reasoning, the claim about the denial of a passport because of political activities was irrelevant. There was no occasion to make a finding about the claim. On the applicant’s story he could not use an Iranian passport. If he had one, it would disclose his identity and he would be at risk. That was why, on his account, he had to obtain a false Iraqi passport. Because he could not use an official Iranian passport at the airport, it was irrelevant whether he had one or had been refused one.

11 In any event, the failure to make a finding about the passport claim could not be a jurisdictional error. There was no claim that being refused a passport amounted to persecution. The claim that he had been refused a passport was but a piece of evidence to bolster the claim of persecution by reason of the applicant’s political opinion. Cf Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79].

12 The only other ground that was seriously pursued is that the Tribunal took into account irrelevant material by relying upon outdated country information to reject the applicant’s fears of persecution as a Kurd. This was said to be a jurisdictional error. In concluding that there was no real chance that he would suffer persecution because he is Kurdish and a Sunni were he to return to Iran, the Tribunal relied in part on observations of the Office of Asylum Affairs, US State Department in Iran – Profile of Asylum Claims and Country Conditions 1994:

13 It was contended that this 1994 material had been superseded by information relating to Kurds published by the same Department in 1999. The numerous cases holding that there is no such error when a Tribunal prefers one body of country information over another (see, for example, NAHI v Minister for Immigration and Multicultural Affairs (2004) FCAFC 10 at [13]) were said to be distinguishable because the later information was from the same source. The 1999 information was as follows:

14 In my view it is wrong to describe the 1999 information as superseding the 1994 information. The two reports deal with different matters. The earlier report deals with the distribution of Kurds throughout Iranian society. People are not discriminated against simply because they are Kurds. This information is relevant to the applicant’s claim that he has been harassed because he is a Kurd and a Sunni Muslim. The later material is directed to a specific part of Iran – the Kurdish area in the north west of the country. The "autonomy" of which the report speaks is autonomy sought for this area – Iranian Kurdistan. The reference to "separatist sympathies" is again to the breaking away of a geographical region. The "sporadic outbreaks of fighting between the government and Kurdish groups" also relates to suspicion of separatist sympathies. If that is not made clear enough by "These suspicions ...", the subsequent reference to the creation of an autonomous Kurdish zone in northern Iraq after the Gulf War, and to "Kurdish areas of Iran", leading to human rights abuses against Kurds, makes the point clear. The context suggests that the final sentence of the 1999 report concerns the activities of a politician active in furthering the Kurdish quest for autonomy.

15 None of the matters mentioned in the 1999 information bears on the applicant’s case. It was not suggested that he was in any way agitating for a Kurdish autonomous region in the north west or that he was suspected by the authorities of having separatist sympathies. He has not complained of the destruction of his village, forced migration or the mining of his property. There is simply no nexus between the 1999 information and any of the applicant’s claims. It is not surprising that the Tribunal did not refer to the 1999 report. Had it done so, it could only have been to explain its irrelevance to the applicant’s case. The Tribunal was aware of the report and of the particular passage relied on. It set out parts of the report (though not the passage relied on), and the passage relied on was contained in the written submissions placed before it by Macpherson & Kelley, the applicant’s advisers.

16 It is said that the Tribunal "applied the wrong test and/or applied the wrong standard of proof in making its ultimate determination as to the existence of protection obligations owed to the applicant". Having at first abandoned this ground, and then re-claimed it, the applicant’s counsel said he did not "vigorously put" it. However, since it was not actually abandoned, I will deal with it briefly. In the applicant’s written submissions reference is made to the Tribunal’s use of the expressions "not completely implausible", "clearly most improbable", "a strong presumption" that the applicant was not identified at the demonstration, and "an unlikely scenario", to support the contention that it "imposed a higher standard of proof than is acceptable". There is nothing in this complaint. The Tribunal was not, by using those expressions, adopting any standard of proof. It was assigning a degree of probability to particular factual claims about past events, with a view to determining whether those claims provided a reliable guide as to whether there was a real chance that the applicant would be persecuted if he returned to Iran. The claim that the Tribunal applied the wrong test (presumably that it did not properly apply the real chance test) has no merit.

17 The Tribunal’s decision was made in June 2000, well before the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (the 2001 Act). The 2001 Act commenced in October 2001, though the regime it introduced applies to this application. The 2001 Act introduced s 477 into the Migration Act 1958. That section requires actions in this Court to be instituted within 28 days of notification of the decision. The section applies only to "privative clause decisions". It is not possible to determine whether the application is barred by s 477 without first determining whether the Tribunal’s decision was affected by a jurisdictional error. See S157 v The Commonwealth [2003] HCA 2; (2003) 195 ALR 24. For the reasons I have given, the decision was not affected by jurisdictional (or any other) error. The decision was therefore a privative clause decision. Accordingly the application must be dismissed for want of jurisdiction. I need not deal with the respondent’s submissions about the applicant’s delay in making this application, which, as a fall-back position, were predicated on the assumption that jurisdictional error had been established, so that the s 477 time limit was not applicable.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

Counsel for the Applicant:	J A Gibson, appearing pro bono

Counsel for the Respondent:	Dr S Donaghue

Solicitors for the Respondent:	Blake Dawson Waldron

Date of Hearing:	4 February 2004

Date of Judgment:	13 February 2004

Federal Court of Australia

VQAB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 89 (13 February 2004)