SDAH v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 49 (24 March 2003)

Last Updated: 24 March 2003

FEDERAL COURT OF AUSTRALIA

SDAH v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 49

MIGRATION ACT - s 474 - jurisdiction of Federal Court in respect of a "privative clause decision" - persecution by reason of religion - credibility findings - whether jurisdictional error.

Migration Act 1958 (Cth) s474

Judiciary Act 1903 (Cth) s39B

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 referred to

Minister for Immigration and Multicultural Affairs v Naima Khawar & Ors [2002] HCA 14; (2002) 187 ALR 574 cited

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 195 ALR 1 followed

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 followed

SDAH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 206 of 2002

MANSFIELD, WEINBERG AND SELWAY JJ

ADELAIDE

24 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 206 OF 2002

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

BETWEEN:	SDAH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	MANSFIELD, WEINBERG and SELWAY JJ
DATE OF ORDER:	14 MARCH 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent his costs of and incidental to 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
SOUTH AUSTRALIA DISTRICT REGISTRY	S 206 OF 2002

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

BETWEEN:	SDAH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	MANSFIELD, WEINBERG and SELWAY JJ
DATE:	24 MARCH 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT

1 The appellant, his wife and two children arrived in Australia on 20 April 2001. They were and are "unlawful non-citizens" for the purposes of the Migration Act 1958 (Cth) ("the Act"). They were taken into detention.

2 On 28 July 2001, the appellant lodged an application for a protection visa. In order to obtain such a visa the respondent had to be satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. In general terms the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") had to be satisfied that the appellant was a "refugee" as defined in the Convention being a person who:

"...owing to a well-founded fear of being persecuted by reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

3 On 13 September 2001, a delegate of the Minister refused to grant the appellant a visa. On 21 September 2001, the appellant sought a review of that decision from the Refugee Review Tribunal. The Tribunal gave its decision on 6 March 2002.

4 The appellant is a citizen of Iran. He and his family are members of the Mandaean religion (also called the Sabaean, Sabian, Sobian, Sabean or Sobbi religion). This is a relatively ancient gnostic or mystical religion having links to Judaism and Christianity, but being separate from both. The appellant claimed to have a well-founded fear of persecution in Iran by reason of his religion.

5 The persecution alleged by the appellant, supported by his wife, fell into two categories. The first was what might be described as general discrimination. This includes general abuse and vilification from Moslem neighbours, attempts to convert the appellant's children to the Moslem religion, inability to obtain government employment, destruction of cemeteries and so on. It would appear that the Tribunal accepted that these allegations were true, at least to the extent that they were supported by independent sources. So, for example, the Tribunal found:

"Members of all religious minorities suffer various degrees of officially sanctioned discrimination, particularly in the areas of employment, education, and housing. Applicants for public-sector employment are screened for their adherence to Islam. The law stipulates penalties for government workers who do not observe `Islam's principles and rules'. Religious minorities cannot serve in the army, the judiciary and the security services."

6 The Tribunal referred to and quoted from a DFAT cable which provided in part:

"The Sobbis feel threatened mainly because of discrimination by the Iranian authorities, which results from the fact that their religion is not officially recognised in Iran. Sobbi children are unable to attend Iranian government schools, but are obliged to study Islam as part of the general curriculum (nb: recognised religious minorities such as Christians are able to attend classes in their own religion at school, but Sobbis do not have this privilege). Because of their religion Sobbis cannot be employed in government jobs and it is very difficult for them to enter university. (nb: only members of recognised religions are able to sit university entrance exams in Iran.) Some Sobbis are able to enter university by claiming to be Moslems (Sobbis are prepared to conceal their religion when necessary, this is not contrary to their beliefs). Sobbis can have similar problems if they work in non-government jobs alongside Moslems."

7 The Tribunal concluded:

"The Tribunal finds that as a religious minority in Iran, the Sabiab/Mandaeans community faces some discrimination, and that as individuals , Sabian/Mandaeans may thus face some discrimination".

8 However, the Tribunal concluded that this discrimination did not constitute "persecution" for the purposes of the Convention. The Tribunal concluded:

"The Tribunal finds that these occurrences are unpleasant but do not consider that such treatment amounts to `serious punishment or penalty' or `significant detriment or disadvantage' [see McHugh J in Chan's Case] and therefore does not amount to persecution for the purposes of the Convention."

9 The reference by the Tribunal to the judgment of McHugh J in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 ("Chan") would appear to be an error. The citation to which the Tribunal was referring would appear to be the judgment of Mason CJ at 388. If restrictions on employment and education are not "serious punishment or disadvantage" then McHugh J may be to the contrary of the Tribunal's conclusions: see at 431 where his Honour accepts that the denial of access to employment to the professions and to education may constitute persecution if imposed for a Convention reason. On the other hand, the comments of Mason CJ were adopted with apparent approval by McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Naima Khawar & Ors [2002] HCA 14; (2002) 187 ALR 574 at [76]. Further, the Tribunal did not refer to s 91R of the Act which does limit "persecution" under the Act to "serious harm", whether or not the word has that meaning under the Convention. The question whether the Tribunal was in error in characterising the discrimination as not being "persecution" is not raised on the appeal and we do not comment further.

10 The second category of persecution alleged by the appellant and his wife involved various specific events of discrimination. These specific allegations were rejected by the Tribunal on credibility grounds. In relation to the specific allegations made by the appellant:

"Specifically, the Tribunal does not accept as credible the applicant's claim that:

* The applicant was accused of sexual assault by the husband of a customer

* The applicant was taken before the court and had to pay a substantial fee

* A neighbour exposed her breasts and accused the applicant of assaulting her and that the applicant had ensuing problems with his neighbours and the police."

11 The specific claims made by the appellant's wife that her daughter was forced to convert to Islam, that she was grabbed by a man in the street and sexually abused and so on were also rejected by the Tribunal on credibility grounds.

12 In the result the Tribunal determined:

"Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant...[is a] person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicants do not satisfy the criterion set out in s. 36(2) of the Act for a protection visa."

13 The appellant sought judicial review of the decision of the Tribunal in this Court pursuant to s 39B of the Judiciary Act 1903 (Cth). The application for judicial review was heard by von Doussa J. His Honour delivered judgment on 19 August 2002.

14 On the face of it, the decision of the Tribunal in this matter appears to be a "privative clause decision" for the purposes of s 474 of the Act. Section 474 of the Act provides:

"474 Decisions under Act are final

(1) A privative clause decision:

(a) is final and conclusive; and

(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and

(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

(2) In this section:

`privative clause decision' means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

(3) A reference in this section to a decision includes a reference to the

following:

(a) granting, making, suspending, cancelling, revoking or refusing to make an order or determination;

(b) granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

(c) granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument."

15 Von Doussa J noted the limitations upon the jurisdiction of this Court to afford judicial review by reason of s 474 of the Act. However, his Honour did not have the benefit of the High Court decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 195 ALR 1 ("S134") and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 195 ALR 24 ("S157") where the High Court "read down" the otherwise broad terms of s 474. Instead his Honour proceeded on the basis that s 474 had a more significant effect upon the jurisdiction of this Court than is now realised:

"It is common ground between the parties that s 474(1) is to be construed and applied according to the principles stated by Dixon J in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598. The section is to be understood as not having a validating effect upon a decision that might otherwise reflect error unless the impugned decision is `a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body' (per Dixon J at 615)."

16 Consequently the issue considered by von Doussa J was whether the Tribunal had made a "bona fide attempt to exercise the power." The appellant's argument that it had not was based entirely upon the credibility findings that the Tribunal had made. After careful consideration of the reasoning of the Tribunal, his Honour concluded:

"I am not persuaded that the decision of the Tribunal was not a bona fide attempt to exercise power. In my opinion the challenge to the decision is not made out, and the application must be dismissed with costs."

17 In light of the High Court decisions in S134 and S157, the jurisdiction of this Court in judicial review proceedings is broader than that which had been agreed by the parties before von Doussa J and that which was applied by him. It is clear from the High Court decisions that the Court's jurisdiction is limited to "jurisdictional errors" (S157 at [76]), but this is still a significantly broader jurisdiction than that described by von Doussa J in his reasons. In determining whether or not a particular error is a "jurisdictional error" or not, it is necessary to have regard to the whole of the Act, including s 474. (See S157 at [77]-[78]).

18 It follows that his Honour was in error in applying the test that he did even if that error has only been revealed since the High Court delivered its reasons in S134 and S157. The question still remains whether any issue has been raised before us which either identifies a jurisdictional error or suggests that the matter should be remitted for further consideration in light of the High Court decisions.

19 The only ground of appeal argued before us was that the Tribunal did not deal with the claim by the appellant that he had been abused and assaulted by a mob which had been incited by Ayatollah Yazdi, a religious leader. In his evidence before the Tribunal the appellant did refer to an incident in 1999 where the Ayatollah had made comments about "spies". Apparently this was a reference to Israeli spies, but the appellant argued before us that it was misunderstood by the crowd to also include Mandeaens. The appellant claimed before us that as a result of that misunderstanding he had been attacked and stoned.

20 The appellant submitted before us that, by reason of this incident, he had a well-founded fear of persecution if he returned to Iran. The appellant submitted that by failing to deal with this specific allegation the Tribunal failed properly to deal with the question of whether there was a "well-founded fear of persecution" and that this failure constituted a jurisdictional error.

21 The problem with this submission is that it falls at the first step. In fact it is clear that the Tribunal took account of the claim made by the appellant. It is mentioned expressly in several places in the Tribunal's reasons.

22 What is also clear is that the claim made by the appellant was not that the mob had misunderstood the Ayatollah, but that the Ayatollah himself had accused the Sabians of being spies:

"About two years ago Ayatollah Yazdi spoke at the Friday Mosque and he referred to Sabians as infidels and spies for Israel. He said we did not deserve to be recognised as a religion and that they should convert or die."

23 The Tribunal dealt with this as follows:

"The Tribunal pointed out to the applicant that it has a copy of the text of the speech, and at no point does Ayatollah Yazdi suggest that Sabians should `convert or die'. The Tribunal asked the applicant if he wished to comment on this observation? The applicant stated that the name of Sabians are mentioned and they are not recognised as a religion. He stated that the Tribunal would know more about the problems of the tape. The Tribunal asked the applicant if he heard the speech himself? The applicant stated that he did not. The Tribunal asked the applicant upon what he was relying that the Ayatollah said these things? The applicant stated that he was called `sobbi, sobbi' in the street, and he was assaulted in the street after his speech. The Tribunal noted that the applicant did not mention this assault in his statement - and asked why not. The applicant stated he was stoned. The applicant stated that he was distracted and his mind was frozen. He stated that he could not remember everything."

24 The Tribunal then set out in its reasons the text of the speech of Ayatollah Yazdi. The speech did refer to the Sabian religion, but only as one of the official religions of Iran. It is clear that the Tribunal has rejected as untrue the statement of the appellant as to the source of his fear.

25 This is a matter of some substance. "Persecution" under the Act does not involve every assault or other act to which an individual might be subject. It clearly requires some official, usually governmental, involvement. That may include the systematic failure upon relevant grounds of the government authorities to protect persons from the actions of other persons: see Chan at 430. But in this case the appellant gave no evidence of systematic government inaction. And in relation to the speech there was no need to do so because the claim was not of government inaction, but of "official" involvement by the Ayatollah himself. However, this claim was untrue. In addition, the Tribunal specifically found that the allegation of Government involvement was untrue:

"There is no independent evidence before the Tribunal suggesting that the Iranian authorities have ever regarded Sabeans as spies."

26 The Tribunal returned to the issue:

"The Tribunal notes the applicant's claims and evidence suggesting that the Mandaean community is under threat by the Iranian [Moslem] population and the authorities and that they are harassed when they have contact with the authorities. The Tribunal does not accept this claim as credible as it is contradicted by the independent evidence which suggests that there is: `no evidence to suggest that the Iranian government actively harasses or routinely persecutes the Sobbis as a community' and that at present, the serious threat to threat to survival of the Mandaean theology is the difficulty recruiting new priests and because younger members are deserting their religion."

27 These comments by the Tribunal must be understood in the above context. When so understood it is clear that the Tribunal rejected the evidence put by the appellant that "the authorities" (including the Ayatollah) were involved in 1999 in the persecution of the appellant and the Mandaeans.

28 Although the argument put to this Court was not raised before von Doussa J, his Honour nevertheless did refer to the topic:

"In the course of discussing part of the country information the Tribunal referred to a reported speech by Ayatollah Yazdi. The applicant said that he had been called `Sobbi Sobbi' in the street and had been assaulted after the speech, and had also been stoned. He was asked why these assaults had not been earlier mentioned. He said that he was distracted and his mind was frozen and he could not remember everything.

29 It is clear from his Honour's reasons that he also was of the view that the Tribunal rejected the appellant's claim and evidence on credibility grounds.

30 If the appellant's claim before the Tribunal (and his evidence to the Tribunal) was that the mob had misunderstood the Ayatollah's speech and had then harassed him, such a claim would have been subject to the simple and obvious answer that the mistaken understanding of a mob in 1999 could hardly provide the basis for a well-founded fear of persecution when the Tribunal gave its decision in 2002.

31 The result of this analysis is that the Tribunal did consider the claim made by the appellant and rejected it. It was open to the Tribunal to do so. There was no jurisdictional error in this regard.

32 Although von Doussa J did proceed upon a mistaken view of the effect of s 474 of the Act, the appellant has not identified any jurisdictional error by the Tribunal.

33 It was for these reasons that we did at the close of the hearing on the 14 March 2003 dismiss the appeal with costs.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Mansfield, Weinberg and Selway JJ.

Associate:

Dated: 24 March 2003

Counsel for the Applicant:	Dr S C Churches (Pro Bono)
Solicitor for the Applicant:	Refugee Advocacy Service of SA Inc
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 March 2003
Date of Judgment:	24 March 2003