NABB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 225 (5 August 2002)

Last Updated: 9 August 2002

FEDERAL COURT OF AUSTRALIA

NABB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 225

NABB OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 137 OF 2002

HEEREY, EMMETT & DOWSETT JJ

5 AUGUST 2002

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N137 OF 2002

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

BETWEEN:	NABB OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HEEREY, EMMETT & DOWSETT JJ
DATE OF ORDER:	5 AUGUST 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. the appeal be dismissed; and

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	N137 OF 2002

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

BETWEEN:	NABB OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HEEREY, EMMETT & DOWSETT JJ
DATE:	5 AUGUST 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This appeal was heard on 5 August 2002. On that day the Court indicated that it had reached a firm view and ordered the appeal be dismissed with costs, we said that we would publish our reasons as soon as possible. These are those reasons.

2 The appellant is a citizen of Iran. He arrived in Australia on 20 April 2001 with his wife and their three children. On 5 July 2001, they lodged an application for Protection (XA) Visas under the Migration Act 1958 (Cth) ("the Migration Act"). On 2 August 2001 a delegate of the respondent, the Minister for Immigration & Multicultural & Indigenous Affairs ("the Minister"), refused to grant the visas applied for and, on 9 August 2001, the appellant and his family lodged an application to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 18 October 2001 the Tribunal affirmed the decision not to grant protection visas.

3 On 2 November 2001 the appellant filed with the Court an application for an order of review of the Tribunal's decision. The ground of the application was stated as follows:

"The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence."

On 15 November 2001, the application came before a judge of the Court when it was listed for hearing on 12 December 2001.

4 When the matter was called on for hearing on 12 December 2001, the appellant sought an adjournment in order to obtain legal advice. Over the objection of counsel for the Minister, the primary judge granted that application and stood the matter over for hearing on 6 February 2002. Despite directions given on 15 November 2001 and again on 12 December 2001, that the appellant file written submissions, no written submissions were filed by the appellant. In the absence of any notice of any amended application or written submissions, the primary judge considered that he had no alternative but to proceed to hear the matter on 6 February 2002 as it then stood. The appellant was unrepresented at all times before the appeal to the Full Court.

5 The decision of the Tribunal is a privative clause decision within the meaning of s 474(2) of the Migration Act. Accordingly, under s 474(1), 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 certiori in any court on any account.

In the light of the submissions made on behalf of the Minister, the primary judge concluded that, having regard to s 474, the Court had no jurisdiction to entertain the application as it was framed. His Honour dismissed the application with costs.

6 His Honour observed that, while the Minister conceded that there is jurisdiction, under s 39B of the Judiciary Act 1903 (Cth)("the Judiciary Act"), for the Court to review a decision such as that of the Tribunal, the application was not expressed to be made pursuant to s 39B. The application made reference to Federal Court Rules that relate to review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and Part 8 of the Migration Act (which has now been repealed). However, the Full Court has accepted the argument of the Minister that, notwithstanding the formal deficiencies in the application, it is capable of being construed as invoking whatever jurisdiction the Court has to review the Tribunal's decision, specifically s 39B of the Judiciary Act.

7 The proper construction to be given to s 474 is that no decision that is in fact given by the Tribunal will be invalidated on the ground that the Tribunal has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the Migration Act, provided always that the decision is a bona fide attempt to exercise the Tribunal's power and provided that the decision relates to the subject matter of the Migration Act and is reasonably capable of reference to the power given to the Tribunal (see The King v Hickman & Ors; Ex parte Fox & Clinton [1945] HCA 53; 70 CLR 598 at 614-5). No contention has been advanced on behalf of the appellant that those prerequisites were not satisfied in the present case. Accordingly, as the primary judge held, s 474 would preclude any right of review by this Court.

8 The appellant contended however that, notwithstanding s 474, transgression by the Tribunal of the constraint of its jurisdiction imposed by ss 36 and 65 of the Migration Act resulted in the purported exercise of jurisdiction by the Tribunal being invalid. He contended further that s 474, to the extent that it would preclude review of the decision, is invalid. Those questions are the subject of a reserved decision of another Full Court of this Court. They are also to be argued before the High Court in the near future. Accordingly, unless it is necessary to consider those questions, it would be undesirable for this Court to embark on an examination of them in this case. It would only be necessary to do so if the appellant is able to persuade the Court that there was some error on the part of the Tribunal.

9 On appeal, the appellant contended that the primary judge erred in failing to hold that:

(a) the Tribunal failed to assess the Appellant's claims of a well-founded fear of persecution in Iran by reference to whether there was a `real chance' that the Appellant and his family may suffer persecution on the grounds of their religion, namely as Sabian Mandaeans, but rather considered whether it was affirmatively satisfied that the threats of personal harm "would be carried out"; and

(b) the Tribunal, having accepted evidence that Sabian Mandaeans "are denied their basic human rights, suffer from harassment and persecution at the ands of local Muslims, all because of their religious beliefs", failed to consider whether there was a real chance that the additional harassment which the family had suffered shortly before their departure from Iran might be repeated, so as to raise the level of discrimination and harassment faced by the Appellant and his family to the level of persecution.

It is clear that the primary judge was not asked to hold that the Tribunal had failed to do either of those things. Nevertheless, the Minister did not raise any objection to the appellant's contentions.

10 The appellant contended that the Tribunal erred in the conclusions that it reached because none of its statements were made in terms of "a real risk, or a real chance, of persecution". Rather, it was said, the Tribunal made statements reflective of a failure to be satisfied "according to some higher standard". In order to deal with those contentions, it is necessary to give some consideration to the Tribunal's findings and its reasons for those findings.

11 The Tribunal had before it the Department's file which included:

* a record of interview with an immigration inspector on the arrival in Australia of the appellant and his family;

* the protection visa application;

* written submissions in support of the application;

* a record of interview with an officer of the Department; and

* written submissions in support of the application for review.

The appellant and members of his family also gave oral evidence to the Tribunal.

12 The Tribunal found that the appellant is forty-four years of age, his wife is thirty-three, his son is fifteen and his daughters are thirteen and ten years of age. They are from Ahvas in Iran. The appellant claimed that, as Sabian Mandaeans, his family were always vulnerable to religious persecution in Iran. The appellant claimed that members of the Mandaean faith are denied a number of human rights. He claimed that there are restrictions on university attendance, denial of employment in the public sector and of the right to work in the food industry, restrictions on the right to register a private business, restrictions on the practice of religious ceremonies during specific months and denial of compensation when a member of the family is unlawfully killed.

13 The appellant claimed specifically that his three children were threatened at school. He claimed that his children were continually singled out because of their religious beliefs. His eldest daughter, Rim, who had attended her school for two years prior to departing Iran, was singled out by her teacher, Ms Arastoo, who told her that it would be in her best interests, and the interests of her family, to renounce her faith and convert to Islam. Rim said to the Tribunal that she was told that if she did not convert there would be terrible consequences for the whole family. She said that she was verbally abused through the use of words that meant "uncleansed" and "dirty". She said that Ms Arastoo told her that she would take her in if she converted to Islam.

14 The appellant and his wife spoke to the school principal about the problem but Ms Arastoo denied making threats to Rim. The appellant's wife told the Tribunal that, when she saw the way that Ms Arastoo denied the allegations, she became very scared. Rim told the Tribunal that her problems with Ms Arastoo started about two months before the family left Iran, although she had not previously had any problems with Ms Arastoo, who had been her teacher throughout her second year. She also told the Tribunal that, after her mother had spoken to the school principal, Ms Arastoo put even more pressure on her. She often told Rim that she should convert to Islam and threatened to kill Rim's parents if she did not convert.

15 The appellant told the Tribunal that, after speaking to the school principal, the problem escalated. Telephone threats were made to the family home. The callers asked the appellant and his wife why they did not allow their children to become Muslims and said they would kill the family if the parents did not convert the children to Islam. The threats occurred for the two months between speaking with the school principal and the family's departure from Iran.

16 The Tribunal accepted that the appellant and his family are Sabian Mandaeans from Ahvas. The Tribunal found that, while the family have suffered low level harassment and discrimination as Mandaeans for much of their lives, they have not suffered to such an extent that the harassment and discrimination could be characterised as persecution "in the Convention sense". The Tribunal considered that it was clear that the appellant and his family did not consider their lives to be so difficult as to necessitate their seeking protection until the problems faced by Rim at the hands of her teacher started around two months prior to their departure from Iran in early 2001.

17 The Tribunal considered that it was clear that the problems that caused the appellant and his family to leave Iran stemmed from the difficulties with an individual, namely, Ms Arastoo. While Ms Arastoo apparently elicited the support of other people to harass the appellant and his family in their home, the family had no continuing problems with any other individual or group.

18 The Tribunal noted that, before leaving Iran, the appellant and his family sold their house and shop and that, if they were to return to Iran, they would have to find alternative accommodation and would not return to the house in which they had previously lived, which had been sold to neighbours. The Tribunal was not satisfied that the appellant and his family could not find accommodation in another part of Ahvas near a different school, thereby averting the problem of having to enrol Rim in the school at which Ms Arastoo taught. The Tribunal was not satisfied that the family's links to the Mandaean community were so strong and close as to make it unreasonable for them to move to an area in Ahvas with a smaller concentration of Mandaeans. The Tribunal was satisfied that living outside of the area where they lived would not preclude them for continuing to have contact with the Mandaean community nor hinder their ability to practise their religion. The Tribunal was satisfied that it would be reasonable for the family to relocate to another part of Ahvas, which would enable Rim to enrol in a different school.

19 Given the passage of time and the inevitable relocation to another part of Ahvas the Tribunal was not satisfied that the return of the appellant and his family to Ahvas would come to the attention of Ms Arastoo nor to any of the people engaged by Ms Arastoo to harass the family in the past. The Tribunal was not satisfied that Ms Arastoo would have any interest in Rim or her family if Rim did not return to her school. Accordingly, the Tribunal was not satisfied that the problems faced by Rim in the past, which had been caused by Ms Arastoo, would recur upon her return to Iran. The Tribunal was not satisfied that the appellant and his family had a well founded fear of persecution in Iran for reasons related to the problems Rim and the family had with Ms Arastoo and her cohorts.

20 The Tribunal considered that, while the family were threatened with death should they not allow their children to convert to Islam, it is one thing to make such threats but another to carry them out. The Tribunal was not satisfied that the threats to the appellant and his wife would be carried should the family return to Iran. The Tribunal observed that there had been no attempt to carry out the threats while the family remained in Iran and that there was no evidence that Mandaeans have been killed or harmed in Iran for refusing to convert to Islam. While the Tribunal was prepared to accept that the threats had been made, it was not satisfied that they would be carried out. The Tribunal found that Mandaeans who live outside the area of Ahvas where the appellant and his family lived did not suffer any form of persecution.

21 The Tribunal concluded that it was not satisfied that the appellant and his family "have a well founded fear of persecution in Iran for reasons related to the problems Rim and the family had with Ms Arastoo and her cohorts". That assessment necessarily involved speculation about what would happen if the appellant and his family were to return to a different area of Ahvaz. The essence of the appellant's contention on the question of whether the Tribunal made an error of law is that several passages in the Tribunal's reasons were reflective of a failure to be satisfied according to some higher standard than that required by the Convention. The appellant relies on the proposition that the statements in question are not made in terms of "a real risk" or "a real chance" of persecution. The appellant relied on passages as follows:

"The Tribunal is not satisfied that these threats to the applicant parents would be carried out should the family return to Iran. ...The Tribunal is prepared to accept that the threats were made but is not satisfied that they would be carried out.

...........................

Given the passage of time and the inevitable relocation to another part of Ahvaz, the Tribunal is not satisfied that the family's return to Ahvas would come to the attention of Ms Arastoo nor to any of the people engaged by Ms Arastoo to harass the family in the past. ...The Tribunal is not satisfied that Ms Arastoo would have any interest in Rim or her family if Rim does not return to her school."

22 In each case, the words complained of, namely "would be carried out", "would" and "would have", are connected to the Tribunal's absence of satisfaction about whether any possible harm or threat would come to fruition. While the sentences do not state what standard of satisfaction was being applied by the Tribunal, the Tribunal's reasons, as a whole, indicate that it was applying the well founded fear standard as explained by the High Court in Chan v Minister for Immigration & Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379.

23 Thus, at the beginning of its reasons, the Tribunal set out the definition of "Refugee" in the Convention Relating to the Status of Refugees. It observed that there are four key elements to the Convention definition, including the following:

"Fourth, an applicant's fear of persecution for a Convention reason must be a `well-founded' fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a `well-founded fear' of persecution under the Convention if they have genuine fear founded upon a `real chance' of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A `real chance' is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent."

24 In that part of its reasons where the Tribunal dealt with the prospects of future harm, including the very incidents in question, the Tribunal re-stated the test as follows:

"The Tribunal is not satisfied that the applicants have a well-founded fear of persecution in Iran for reasons related to the problems Rim and the family had with Ms Arastoo and her cohorts."

...........................

"The Tribunal is therefore not satisfied that this incident will be repeated nor that it causes Rim to have a well-founded fear of persecution in Iran for a Convention reason."

...........................

"Having considered all of the evidence before it, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution in Iran for a Convention reason."

There is no reason to conclude that the Tribunal, when stating its conclusions in those three passages was intending to apply a standard other than that which it had set out in relation to the fourth key element of the definition.

25 There is no justification for concluding that the Tribunal made such an elementary error as is relied upon by the appellant. In circumstances where the Tribunal started and finished by stating the correct "real chance" test, the fact that it used some phraseology in between that might or might not have suggested a departure from that test is not a warrant for concluding that the Tribunal erred in law. The appellant's contentions are, in essence, an invitation to the Court to read the Tribunal's reasons "with an eye keenly attuned to error" (see Minister for Immigration & Multicultural Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2).

26 We are not persuaded that there was any error on the part of the Tribunal that would be capable of review, irrespective of the operation of s 474 of the Migration Act. Accordingly, it is not necessary to consider the additional arguments advanced on behalf of the appellant. It follows that the appeal should be dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey, the Honourable Justice Emmett and the Honourable Justice Dowsett.

Associate:

Dated: 8 August 2002

Counsel for the Appellant:	Mr J. Basten QC & Mr N. Poynder
Solicitor for the Appellant:	Craddock, Murray & Neumann
Counsel for the Respondent:	Mr S. Gageler SC & Mr S. Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 August 2002
Date of Judgment:	5 August 2002