SAAP of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 411 (11 December 2002)

Last Updated: 11 December 2002

FEDERAL COURT OF AUSTRALIA

SAAP of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 411

MIGRATION - appeal from decision of single judge affirming decision of Refugee Review Tribunal to not grant protection visa - whether failure to comply with s 424A Migration Act 1958 (Cth) - whether compliance with s 424A essential precondition to valid exercise power - whether privative clause decision.

STATUTES

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 424A, 474, 129, 131, 368, 414, 412

CASES

Awan v Minister for Immigration, Multicultural Affairs [2002] FCA 594 Cited

Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 Cited

Hashimi v Minister for Immigration & Multicultural Affairs [2002] FCA 988 Cited

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

NACL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 387 Cited

QAAD v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 1038 Cited

R v Hickman; ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598 Cited

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 Refd to

SAAP of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs

S 123 of 2002

HEEREY, MOORE & KIEFEL JJ

BRISBANE (HEARD IN ADELAIDE)

11 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA
ADELAIDE DISTRICT REGISTRY	S123 OF 2002

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

BETWEEN:	SAAP OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	HEEREY, MOORE, KIEFEL JJ
DATE OF ORDER:	11 DECEMBER 2002
WHERE MADE:	BRISBANE (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
ADELAIDE DISTRICT REGISTRY	S123 OF 2002

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

BETWEEN:	SAAP OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	HEEREY, MOORE, KIEFEL JJ
DATE:	11 DECEMBER 2002
PLACE:	BRISBANE (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

THE COURT:

1 The appellant is a follower of the Sabian-Mandean religion. She claimed that Sabian Mandeans are subject to harassment and discrimination in Iran and this extended to their abduction and attempted forced conversion to Islam. In some cases a number of Sabian Mandeans have disappeared. The examples given by the appellant of such conduct included an incident where her husband was struck by a rock thrown by a group of Muslims during a religious ceremony. As a result he lost he lost the sight of an eye. The appellant's elder daughter had been the subject of an attempted abduction by the Iranian authorities with a view to forcibly converting her to Islam. In August 2000 the appellant was found by the authorities to be working as a hairdresser. Sabian Mandeans, the appellant said, are not entitled to work as hairdressers because they might come in contact with Muslims. She was or would be suspected in such circumstances of spying on Muslim clients. She said that she was then dismissed from that employment and the hairdressing salon was burned down. She also claimed that she had been the victim of an assault, some years ago, by reason of her religion.

2 The Refugee Review Tribunal ("the Tribunal") accepted that the appellant's husband lost the sight of his eye in the circumstances referred to by the appellant, but found that it had occurred five or six years ago, not in July 2000. It fixed this date by reference to the daughter's evidence, which the appellant had accepted would be correct. It considered it showed a lack of tolerance or hatred of Sabian Mandeans by some individuals in the Muslim community but alone could not give rise to a genuine fear of persecution.

3 The independent country information did not accord with the appellant's claims of kidnapping and forced conversions. The pressure which was brought to bear upon the Sabian Mandean community did not include the violent and forced conversations claimed by the appellant, her daughter and their witnesses. The Tribunal did not accept that the incidents referred to by them took place and arrived at such a conclusion by reference to the country information and its assessment of their credit.

4 The Tribunal considered it implausible that the appellant would be viewed as a spy because she worked as a hairdresser. Further this was not a fear expressed by her when she applied for a protection visa or when she was first represented. It rejected the evidence of the witnesses.

5 At the hearing the elder daughter was present but the appellant did not propose to call her. The Tribunal indicated that it might want to take evidence from her and no objection was taken to that course by the appellant or her migration agent. The Tribunal member had said, at the outset of the hearing, that he would advise the appellant of information that was considered to be adverse to her claim and would give her an opportunity to comment. After the appellant's two witnesses had given evidence the Tribunal took evidence from the elder daughter, in the absence of the appellant. The appellant had not herself given evidence at this point. The migration adviser remained in the hearing room whilst the daughter gave evidence.

6 The Tribunal found the daughter's evidence about the circumstances that led her to leave Iran and seek protection in Australia to be unconvincing and inconsistent. It conflicted with the appellant's evidence as to where and how an attempt or attempts to abduct and convert her were made. It raised the question whether she left Iran because her husband was drug addicted and she was having difficulties in obtaining a divorce.

7 The claim that the daughter and her siblings had been deprived of an education, and refused admission to a school, was not established. The Tribunal found, on the daughter's evidence, that they had attended school, although they did not progress to higher eduction because of the requirement that Islam be studied.

8 Other aspects of the appellant's claims were also not accepted. The problems that they had in fact experienced were not, in the Tribunal's view, sufficiently serious to amount to persecution. It was not satisfied that she was in genuine fear of persecution because of her religion or any imputed political opinion arising from her employment as a hairdresser, or that there was a real chance she would suffer persecution for those reasons if she returned to Iran. It is the giving of the daughter's evidence which founded the basis of the application before his Honour, Mansfield J.

9 It was contended that the daughter's evidence had been obtained unlawfully. His Honour rejected that contention (see SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577). That ground is not pursued on the appeal. It was also alleged that the Tribunal failed to comply with s 424A of the Migration Act 1958 (Cth) because it failed to give to the appellant information that it considered would be the reason for affirming the decision under review and by failing to invite the appellant to comment upon it. Section 424A provides, so far as is relevant:

424A Applicant must be given certain information

(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c) invite the applicant to comment on it.

10 Subsection (2) provides that when an applicant is in immigration detention the information and the invitation must be given by a method prescribed for the purpose of giving documents to such a person (and see reg 5.02 of the Migration Regulations).

11 The argument relies upon the appellant not being present during her daughter's evidence, not being provided with details of it and not being given an opportunity to respond. The breach of s 424A is a breach of provision intended to afford procedural fairness. Compliance with s 424A is an essential pre-condition to the valid exercise of the Tribunal's powers, it was submitted.

12 His Honour did not consider that procedural fairness had been denied to the appellant. The Tribunal had some difficulty obtaining a coherent version of events from the appellant. When she came to give evidence, the Tribunal member said that he wanted to clear up some matters. The first related to evidence taken from the daughter. As to the incident concerning her husband, the daughter had given different dates for it. The appellant was asked if they were correct and she agreed that her daughter would know. The Tribunal also pointed out that her daughter had said that she and her siblings had attended school and the appellant responded that they had, but sought to qualify it. The Tribunal asked the appellant about her claims concerning her daughter's abduction.

13 His Honour found that the appellant was made aware of the nature of the evidence given by her daughter and that it might be of importance, and that she had the opportunity to comment upon it. Further, the migration agent had remained in the room throughout. So far as concerned the Tribunal's use of the evidence, whilst it found the daughter's evidence to be internally contradictory, this did not directly affect the appellant's credibility.

14 His Honour did find that the Tribunal failed to comply with s 424A of the Act because it failed to give the appellant particulars of the information in writing. The Minister does not contend to the contrary of this finding. The failure was not however of such significance that relief under s 39B Judiciary Act 1903 (Cth) should be granted, such relief being discretionary. In his Honour's view the objective of s 424A had been achieved. His Honour did not then find it necessary to consider whether the private clause provision, s 474 operated so that the decision was not, in any event, invalidated even though there was a breach of s 424A.

15 The appellant submits that the requirements of s 424A are an essential condition to the exercise of power. The privative clause, s 474, does not apply. This follows from an application of the Hickman principles (R v Hickman; ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598), it is submitted.

16 His Honour's decision predates that of NAAV v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 228. In NAAV von Doussa J held that, in the case of privative clause decisions, s 474(1) was intended to be the leading provision, with the consequence that apparently inconsistent provisions of the Act are to be read as subject to it (at [635]). To construe s 474 so that it did not have the effect of validating decisions, so as to render lawful what would otherwise amount to jurisdictional error of the type referred to in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, would defeat that object [636]. His Honour rejected contentions that the section might not exclude the requirements of procedural fairness and held that s 474 was intended to amend provisions of the Act relating to procedures attending the decision-making process under the Act (at [632]-[633]). The Chief Justice agreed (at [4]). Beaumont J held that s 474(1) operated in its terms, subject to the conditions specified in Hickman and expressed agreement with the reasons of von Doussa J (at[277]).

17 The appellant accepts that there was a majority view in NAAV on the construction of s 474. It is submitted however, that s 424A is more than a procedural requirement.

18 An application of the reasoning of the majority, differently constituted, in the appeal in Wang v Minister for Immigration Multicultural and Indigenous Affairs, determined with NAAV, would characterise the section as fundamental and necessary to ground the jurisdiction of the Tribunal, it was contended. That appeal concerned the requirements of ss 129 and 131 of the Act. It is not necessary to set out the sections nor to refer to the judgments of each of the majority in Wang. That decision cannot be determinative of how s 424A is to be characterised. The appellant's argument focussed upon the Chief Justice's reasons principally because, on this topic, the Chief Justice differed from the other member of the majority in NAAV concerning the operation of s 474 on s 129 and s 131.

19 In Wang, Black CJ was not in agreement with the conclusion reached by von Doussa J that ss 129-131 were not essential pre-requisites to the exercise of power. The Chief Justice however confirmed that he was in agreement with what von Doussa J had said about the operation of s 474(1) "on procedural steps in a validly attracted area of decision-making" (at [37]). Black CJ held that the sections there in question were necessary to "enliven" the relevant power. The Chief Justice did not consider that this result would lead to an opening up of areas for review of "the various procedural requirements of the Act". In the reconciliation process between such provisions, they would give way. The Chief Justice referred to them as "directory" in this sense (at [38]). It may be observed that von Doussa J, did not doubt that there may be a jurisdictional factor which attracted jurisdiction. Such "inviolable limitations or restraints" had been applied by the High Court, his Honour observed (at [622]-[624]). It was upon that basis that prohibition was granted in Hickman, the Local Reference Board's jurisdiction not being attracted because the dispute did not relate to the coal mining industry, the subject matter of the relevant regulations giving power.

20 Section 424A could not, in our view, be characterised as one which attracts the jurisdiction of the Tribunal. That is more likely to depend upon a valid application to review the decision in question: sections 368, 414 (and see von Doussa J in NAAV [625]). The obligations imposed by s 424A(1) clearly arise after the Tribunal has entered upon the exercise of its power. In Wang von Doussa J considered, in connexion with the argument as to ss 129 and 131, that a failure to give the information required by s 424A could not constitute preconditions to the exercise of the power to make a decision. Such an approach would, in his Honour's view, defeat the object of s 474(1) (at [674]). We respectfully agree.

21 The appellant placed reliance upon the decision of North J in Awan v Minister for Immigration, Multicultural Affairs [2002] FCA 594 where his Honour held that a breach of s 359A of the Act, which is in terms similar to s 424(1), was fundamental. Compliance with that section was, in his Honour's view, a condition precedent to the power to determine (at [176]). We do not, with respect, agree that it is sufficient to determine how important a condition might be. It is necessary that the statutory condition in question be read with s 474 (see also Hashimi v Minister for Immigration & Multicultural Affairs [2002] FCA 988 and QAAD v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCA 1038). In any event Awan was decided before NAAV, where the majority held that s 474 is the provision to which other sections, concerned with procedural requirements, are subject. A Full Court of this Court has recently confirmed that the effect of s 474(1) is to protect a Tribunal's decision from invalidity on account of breach of the requirements of s 424A(1) (NACL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 387 [18][21]).

22 The appellant sought to avoid a conclusion that s 424A was not a provision which attracted the jurisdiction of the Tribunal by submitting that the relevant statutory power exercised by the Tribunal was the power to decide the application for review. On that analysis, it was submitted, the procedural step contemplated by that section preceded the exercise of the power and was essential to its exercise. We do not agree. The jurisdiction of the Tribunal is attracted by the lodgement of a valid application under s 412 seeking the review of a Refugee Review Tribunal-reviewable decision. As noted earlier, s 424A operated during the exercise of that jurisdiction.

23 In our view s 474 operates to render effective the decision despite a breach of s 424A. The appeal will be dismissed with costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, Moore and Kiefel.

Associate:

Dated: 11 December 2002

Counsel for the Appellant:	Mr B Hayes QC with Mr M Blumberg
Solicitor for the Appellant:	Bourne Lawyers
Counsel for the Respondent:	Ms S Maharaj
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	28 November 2002
Date of Judgment:	11 December 2002