The Refugee Review Tribunal has no duty to obtain further medical or psychiatric reports even where an applicant's psychological condition is in issue, and may make assumptions favourable to the applicant about their condition without expert evidence.
Later decisions that cite Minister for Immigration and Multicultural and Indigenous Affairs v SGLB
Decisions cited by Minister for Immigration and Multicultural and Indigenous Affairs v SGLB
Last Updated: 1 July 2004
GLEESON CJ,
GUMMOW, KIRBY, HAYNE AND CALLINAN JJ
MINISTER FOR IMMIGRATION AND MULTICULTURAL
AND INDIGENOUS AFFAIRS APPELLANT
AND
SGLB RESPONDENT
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB
17 June 2004
A256/2003
1. Appeal allowed.
2. Orders of the Federal Court of Australia made on 11 March 2003, to the extent that they relate to the appeal to that Court from the orders of the Federal Magistrates Court made on 20 December 2002, set aside (save that as to costs). In place thereof, order that the appeal to that Court against the orders of the Federal Magistrates Court is dismissed.
3. Appellant to pay the respondent's costs in this Court.
On appeal from the Federal Court of Australia
Representation:
S J Gageler SC with S B Lloyd for the appellant (instructed by Sparke Helmore)
S Walsh QC with S C Churches for the respondent (instructed by Refugee Advocacy Service of South Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB
Immigration - Refugees - Procedural fairness - Refugee Review Tribunal - Jurisdictional error - Expert medical advice - Psychological state of applicant assumed to be possible explanation for unsatisfactory evidence - Whether denial of procedural fairness by failing to order further psychological assessment of applicant - Whether denial of procedural fairness by accepting that applicant suffered stress disorder - Whether denial of procedural fairness by acceptance of effects of disorder on applicant without expert medical advice.
Statutes - Construction - Privative clause - Whether putative errors of the Refugee Review Tribunal fell within the operation of s 474 of the Migration Act 1958 (Cth).
Migration Act 1958 (Cth), ss 65, 415, 474, 496.
"The Tribunal denied procedural fairness, amounting to jurisdictional error, in refusing the then applicant's request that a psychiatric report be obtained."
"On 20 June 2002 the Tribunal as presently constituted held a 'pre-hearing conference' with [the respondent]. This was necessary because [the respondent] had asked the Tribunal to postpone his hearing indefinitely because of his mental state. The Tribunal understood that he had 'self-harmed' on several occasions and wished to discuss with him whether he wanted to give oral evidence and if so, when he might feel able to do so. On the day of the pre-hearing conference [the respondent] expressed a wish to give oral evidence as soon as possible, and it was agreed with him that the hearing would take place on 26 June 2002 ... With the agreement of the Department, the Tribunal also arranged for an assessment of [the respondent's] psychological condition to be undertaken by a psychologist at the detention centre at Woomera. [The respondent] had no objection to doing this. The purpose of the assessment was to enable the Tribunal to take into account any memory or other difficulties which might be experienced by [the respondent] during the forthcoming hearing."
"The Tribunal has now received an assessment of [the respondent's] general state of mind ... The Tribunal could infer from it that the inconsistencies in [the respondent's] account do not arise from blurred or confused recall."
It was in response to that observation that the presently relevant parts of the letter of 30 July 2002 were written.
"We are not attempting to impugn the Woomera camp psychologist's ability, but contend that a further, more independent and expert assessment be undertaken to determine [the respondent's] state of mind and whether there can be justified links to his past claims of trauma and persecution. In other words, an expert assessment to determine the source of such behaviour and whether it stems from serious Post Traumatic Stress Disorder (PTSD). We consider that the Tribunal has a duty to ask the question about [the respondent's] anger and the source of that anger."
"We submit that it could be possible that our client's anger is a symptom of deeper trauma, which only an expert opinion could determine."
"As to whether [the respondent's] current condition is a consequence of Convention-related events in Iran, (rather than during his period of over two years in detention in Australia, for example), it is for the Tribunal to make findings on the events which [the respondent] claims led to his decision to leave Iran."
She also said, in relation to the evaluation of the respondent's evidence, that she was prepared to accept that he was suffering from PTSD, and in those circumstances would not draw the adverse conclusion foreshadowed in her letter of 27 June. She said that she proposed to accept that the respondent's ability to give evidence clearly was almost certainly influenced by PTSD.
The jurisdiction of this Court
"(1) The order of the Tribunal dated 13 August 2002 is quashed.(2) Remit the matter to the [Tribunal] for further consideration.
(3) The [respondent] have his costs of the appeal and his application for judicial review (if any)."
In his reasons, Selway J had said that he ordered mandamus to the Tribunal but this was not reflected in the settled order.
"Except as otherwise provided by another Act, an appeal shall not be brought to the High Court from a judgment of the [Federal] Court constituted by a single Judge.However, this subsection does not apply to a judgment of the [Federal] Court constituted by a single Judge exercising the appellate jurisdiction of the Court in relation to an appeal from a judgment of the Federal Magistrates Court."
Applicable legislation
"[o]nce it is accepted, as it must be, that s 474 is to be construed conformably with Ch III of the Constitution, specifically, s 75, the expression 'decision[s] ... made under this Act' must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Indeed so much is required as a matter of general principle. This Court has clearly held that an administrative decision which involves jurisdictional error is 'regarded, in law, as no decision at all'[4]. Thus, if there has been jurisdictional error because, for example, of a failure to discharge 'imperative duties'[5] or to observe 'inviolable limitations or restraints'[6], the decision in question cannot properly be described in the terms used in s 474(2) as 'a decision ... made under [the] Act' and is, thus, not a 'privative clause decision' as defined in s 474(2) and (3) of the Act[7]."
In so concluding, the Court rejected a submission put by the Commonwealth which was identified in the joint judgment as follows[8]:
"On behalf of the Commonwealth, it was contended that s 474 should first be construed as meaning and intended to mean that decisions are protected so long as there has been a bona fide attempt to exercise the power in question, that they relate to the subject matter of the legislation and are reasonably capable of reference to the power."
Facts
Alleged errors
(1) That there was no evidence before the Tribunal upon which it could be satisfied that the respondent was suffering from Post Traumatic Stress Disorder ("PTSD") (the "no evidence" ground)[9];
(2) The Tribunal erred in making findings as to the credibility of the respondent where there was no evidence before it which would enable it to assess the effects of PTSD on the credibility of the respondent (the "credibility" ground)[10]; and
(3) Having found that the respondent suffered from PTSD, the Tribunal failed to satisfy itself that he could take part in the proceedings (the "competence" ground)[11].
The Minister submitted that, contrary to the holdings of Selway J, the Tribunal had not erred in any respect and that, in any event, the errors attributed to it would not have been jurisdictional errors. The Minister's submissions should be accepted.
The jurisdiction of the Tribunal
"A criterion for a protection visa is that the applicant for the visa is:(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or
(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:
(i) is mentioned in paragraph (a); and
(ii) holds a protection visa."
The "no evidence" ground
Credibility
"But, having found that the [respondent] was suffering from PTSD there was no evidence before the Tribunal which would have enabled it to assess whether or not any of the evidence the [respondent] gave was reliable. Having (wrongly) diagnosed that the [respondent] was suffering from PTSD it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the [respondent's] evidence without evidence as to what effect the PTSD might have on the [respondent's] capacity to give evidence." (emphasis added)
"The Tribunal was required by s 430 of the Act to prepare a written statement setting out its decision on the review, 'the reasons' for that decision and 'the findings on any material questions of fact', and referring to 'the evidence or any other material' on which those findings were based."
This obligation required that where two conflicting accounts were before it, the Tribunal was to determine which it accepted. Thus, after accepting that the respondent's ability to give evidence may have been impaired, the Tribunal went on:
"As to whether his current condition is a consequence of Convention-related events in Iran, (rather than during his period of over two years in detention in Australia, for example), it is for the Tribunal to make findings on the events which [the respondent] claims led to his decision to leave Iran."
That is to say, while the Tribunal was prepared to take the respondent's claims at their highest, namely, as last described in the oral evidence (at hearing) and written evidence (by affidavit after the hearing), where there was a conflict the Tribunal was nevertheless bound to decide between those inconsistent accounts. Indeed, this is borne out by the example given by Selway J in support of this alleged error[18]:
"For example, the Tribunal found that [the respondent's] first version of where he was living immediately prior to leaving Iran was true, and the later version untrue. The Tribunal analysed the issue in this way:'These two assertions as to his whereabouts in the months leading to his departure from Iran are entirely irreconcilable, and he has not provided any explanation as to why they differ. I consider untrue his claim to have been in hiding throughout his last six months in Iran. I am satisfied that he was living at his family home throughout that period. It follows, and I am satisfied, that he was not detained again by the authorities because they did not wish to detain him. It also follows, as he willingly remained at his family home where he could be readily located by the authorities, that he did not fear arrest.'"
At the hearing, the respondent gave evidence that he had spent the last six months before leaving Iran living at his family home. In contrast, when invited to give further evidence in writing after the hearing, he claimed that he had spent that time in hiding. Thus, disregarding all accounts given by the respondent prior to the hearing, the Tribunal was still required to make a factual finding.
Competence
The privative clause
"The plaintiff asserts jurisdictional error by reason of a denial to him of procedural fairness and thus s 474, whilst valid, does not upon its true construction protect the decision of which the plaintiff complains. A decision flawed for reasons of a failure to comply with the principles of natural justice is not a 'privative clause decision' within s 474(2) of the Act."
"The detailed specification of matters bearing upon the grant of a protection visa inserted into the Act at the same time as was s 474 makes it clear that the Parliament was not enacting provisions to the effect that decision-makers could validly grant or refuse to grant protection visas on the basis of a bona fide attempt to determine whether the criteria for the grant of a protection visa have been satisfied, as distinct from the decision-maker's actual satisfaction or lack of satisfaction as to those criteria. And as already pointed out, a decision-maker cannot be said to be satisfied or not satisfied if effect is not given to those criteria because, for example, they have been misconstrued or overlooked."
"Where it appears reasonably likely to the [Court of Arbitration]that an act, omission or circumstance will occur, or has occurred, or having occurred, will be repeated or continued; and that
the result
of the act, omission, circumstance, repetition, or continuance,
is or will be
(a) to cause, contribute to, or hasten the occurrence of a lock-out ...
the [Court of Arbitration] may make such order as it considers necessary to terminate or avoid that result." (emphasis added)
The expression "lock-out" was defined so as to include any closing of a place of employment or suspension of work or refusal by an employer to continue to employ any number of workers with a view to enforcing compliance with demands by any employer of any workers (s 6).
"The result is to make it impossible to base prohibition or certiorari on any error of the [Court of Arbitration] made in a bona fide attempt to apply these conceptions in the course of exercising the power which that Court possesses, a power to which the order might reasonably be referred. Plainly it is not a misapprehension which would take the order completely outside the scope of the [Court of Arbitration's] authority."
"In such a case it may be possible to construe the provision governing that act or decision as one which does not impose restraints or limitations which must be observed if the act or decision is to be valid."
Gaudron and Kirby JJ went on to construe s 65 of the Act as containing specific requirements or restraints observance of which was essential to the validity of the decisions thereunder.
"It is, however, scarcely necessary to observe that the effect of this is not absolutely to deprive the Supreme Court of its power to issue a writ of certiorari to bring up the proceedings of the inferior Court, but to control and limit its action on such writ. There are numerous cases in the books which establish that, notwithstanding the privative clause in a statute, the Court of Queen's Bench will grant a certiorari; but some of those authorities establish, and none are inconsistent with, the proposition that in any such case that Court will not quash the order removed, except upon the ground either of a manifest defect of jurisdiction in the tribunal that made it, or of manifest fraud in the party procuring it."
"A statute which purports to take away the right to apply for certiorari is wholly ineffective to exclude or attenuate the jurisdiction of the court to issue the order in cases where fraud or collusion is established",
and Professor Sir William Wade to say that what in Plaintiff S157[38] were to be identified as the "three Hickman provisos" appeared to derive from Willan[39].
Orders
The course of the proceedings
Procedural unfairness and jurisdictional error
"The [Tribunal] went to considerable lengths to establish that it had provided an interpreter suitable to the applicant ... The [Tribunal] accepted that the applicant suffers from [post-traumatic stress disorder (PTSD)], on the basis of a psychologist's report obtained by the [Tribunal]. Having accepted the disability suffered by the applicant there was no need for the [Tribunal] to further prolong proceedings to obtain a further medical assessment. His legal advisers were apparently satisfied that they could obtain instructions from him and represent him. Persons suffering from PTSD commonly conduct legal proceedings without particular difficulty. The [Tribunal] took into account that the answers given by the applicant may be confused, consistent with his PTSD and adjourned proceedings early when it became apparent that the proceedings had become unproductive. The [Tribunal] took the precaution of submitting further questions in writing ... This was, in my view, a proper approach for the [Tribunal] to take."
Approach and common ground
1. Avoiding merits review: The appeal is not an opportunity for a merits review, permitting the court performing judicial review simply to substitute a different conclusion because it regards that conclusion as preferable in the facts[60]. The Federal Court acknowledged this limitation[61]. It is reinforced in this field of judicial review by the limitations relevantly confining the review to the demonstration of jurisdictional error[62].
2. Avoiding over-critical analysis: A court performing judicial review should not over-zealously scrutinise the reasons of the administrative decision-maker to find error[63]. As it happens, the Tribunal's reasons in the present case comprise 35 closely typed pages. This was the second occasion on which the Tribunal had considered the respondent's claim. The first decision (which also affirmed the decision of the delegate of the Minister not to grant a protection visa) had been set aside by the Federal Court on the basis of a suggested problem with interpretation of the respondent's testimony before the first Tribunal[64]. In such circumstances, there would be a reasonable, and understandable, desire to bring the extended proceedings in the Tribunal to a conclusion without further undue delay. The confinement of the respondent to immigration detention during the proceedings before the Tribunal would add a sense of urgency to this endeavour.
3. Recognising the serious stakes: The decision concerning the respondent's application for a protection visa is serious and important. As was remarked in Abebe v The Commonwealth[65]:
"It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself."The decision has significance for the composition of the Australian population and for the compliance of the nation with its obligations, by international law, under the Refugees Convention[66]. These are reasons why, properly, the Australian legal system treats such applications seriously and insists upon the attainment of high levels of accuracy in compliance with the Act and with the requirements of procedural fairness.
4. Adopting approach of vigilance: It was accepted by the Tribunal that the respondent did not wish to return to his country of nationality, Iran, and that he "may have a strong subjective fear in relation to doing so"[67]. Moreover, the Tribunal accepted (and the evidence supported the conclusion) that "arbitrary arrest and detention are common in Iran and that serious ill-treatment occurs in prisons"[68]. The material on the record before the Tribunal included a news report in relation to the return of Iranian men refused refugee status in Australia after spending two years in immigration detention at the Woomera Detention Centre[69]. These materials properly oblige the Tribunal, and other Australian decision-makers, to adopt an approach of vigilance to such applications. All Australian decision-makers in this field must test their conclusions against the possibility that the conclusions might be wrong. The benefit of any reasonable doubt should ordinarily be given (at least in a case such as the present) to a person in the position of the respondent[70]. Especially is this so because, under current arrangements, the respondent remains in immigration detention whilst the legal process is being completed. He pays for the further scrutiny of his claim, and for delays caused by any legal errors, in a coinage purchased at the price of his own liberty[71].
5. Accepting the case of mental disturbance: By the time of the second hearing before the Tribunal, there appeared to be no doubt that the respondent was suffering from some form of psychiatric or psychological disturbance. The suggestion to this effect occasioned the second Tribunal's own initiative to obtain an opinion from the psychologist employed by the body managing the Woomera Detention Centre. That person's report noted that the respondent was "emotionally and physically volatile" and that he had "self-harmed" (a euphemism for the administration of self-inflicted wounds) rising in the respondent's case to repeated cases of attempted suicide. The Tribunal accepted the "repeated incidents of serious self-harm while in detention"[72]. In the conduct of the second hearing before the Tribunal, the respondent "became highly agitated". The Tribunal found it "apparent that he was not in a condition to answer any further questions"[73]. This led to the abandonment of the hearing and the substitution of a series of written questions for the oral hearing.
6. Considering the initial application: On first arrival in Australia, the respondent did not recount the attacks on him in Iran, the murder of members of his family and the serious civil deprivations suffered by members of his community, the Arab ethnic minority in Iran. The migration agent then representing the respondent, in a letter to the Tribunal, suggested that the respondent might not have mentioned these matters because of his mental disorder and past trauma. Although the respondent was unable to speak or write in English, his initial application was written by someone, other than the respondent himself, obviously fluent in that language. Based upon multiple factors, various authorities have noted the risks of errors in initial interviews of refugee applicants, on first arrival in a country of refuge[74].
7. Remembering the purpose of credibility: Credibility is often seen as the crucial issue in Tribunal determinations of refugee status. The references in the Refugees Convention to the existence of "fear", and to the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam[75], "[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility". There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue[76]. There is no necessary correlation between inconsistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicants or their children may be advanced by saying what they believe officials want to hear[77]. The Tribunal must be firmly told - if necessary by this Court - that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false or inconsistent statements, or are believed to have done so.
8. The evidence before the Tribunal: It is for the Tribunal to assess the facts, including questions of credibility and the genuineness of the application made by the respondent. The Tribunal has a duty to reach its own conclusion on the review and to give effect to it in the form of a "decision"[78]. By the Act, it is relieved from the obligation to comply strictly with the rules of evidence[79]. The Evidence Act 1995 (Cth) does not, in terms, apply to proceedings before the Tribunal[80].
9. The inquisitorial obligation: Nevertheless, the Tribunal is not a body engaged in purely adversarial proceedings. It operates according to inquisitorial procedures[81]. This feature of the Tribunal's operation casts obligations upon it that are different from, and in some respects more onerous than, those applicable to more traditional bodies acting according to the more passive decision-making virtues of adversarial trial.
The unfairness of the Tribunal's procedures
"It is imperative that the source of this anger [in the respondent] is assessed thoroughly by an expert in the field of psychology or psychiatry to enable the Tribunal to know its true source."
"[A] further, more independent and expert assessment be undertaken to determine [the respondent's] state of mind and whether there can be justified links to his past claims of trauma and persecution. In other words, an expert assessment to determine the source of such behaviour and whether it stems from serious [PTSD]. We consider that the Tribunal has a duty to ask the question about [the respondent's] anger and the source of that anger ... We submit that it could be possible that our client's anger is a symptom of deeper trauma, which only an expert opinion could determine."
"[H]olding a first degree in psychology does not mean that the individual is appropriately clinically qualified or competent to carry [out] detailed psychological assessments ... In my view, these are hard to see as expert reports. The danger is that non-expert advice may lead to incorrect decisions in which an asylum-seeker [i]s wrongly refused. The acceptance of non-expert advice may also make those responsible for adjudication more cynical about all reports ... [T]he interpretation of such restricted evidence should in matters of uncertainty or doubt always be in favour of the asylum-seeker in order to avoid the inherent risks arising from the use of such material."
The UNHCR Handbook emphasises that[88]:
"It frequently happens that an examiner is confronted with an applicant having mental or emotional disturbances that impede a normal examination of his case. A mentally disturbed person may, however, be a refugee, and while his claim cannot therefore be disregarded, it will call for different techniques of examination.The examiner should, in such cases, whenever possible, obtain expert medical advice. The medical report should provide information on the nature and degree of mental illness and should assess the applicant's ability to fulfil the requirements normally expected of an applicant in presenting his case".
The privative clause argument is unavailing
"In the case of a purported exercise of decision-making authority, limitation on authority is given effect, notwithstanding the privative provision. That may involve a conclusion that there was not a 'decision' within the meaning of the privative clause. In a case such as the present, it may involve a conclusion that a purported decision is not a 'decision ... under this Act' so as to attract the protection given by s 474."
Orders
Facts
"6. WHY DID YOU COME TO AUSTRALIA? It was mainly to secure my future, find a job in my own profession or in any other occupation. I have come to work, to live to get married. After I get married hopefully my children will lead a happy life. ...7. DO YOU HAVE ANY REASONS FOR NOT WISHING TO RETURN TO YOUR COUNTRY OF NATIONALITY? Why should I return to that addicted community. It is like going back to prison as there is no recreation and you work all the time to earn money for your food. You can't go to a park because they say you are a single man and not allowed. My eldest brother is 40yrs old and is single the same with my other brother. At least I have a little room nothing else."
"During the interview conducted with me upon my arrival in Australia, I could not reveal all the information simmering in my heart about the tragic circumstances I passed through in Iran. That was due to the fact that I was seized with fear over the information being divulged and taken as evidence to expose my family in Iran to destruction at the hands of the Iranian security organs. I tried during the months of my detention to appoint a personal solicitor to explain to him my problems free of fear.I lived with my family and the members of my clan a tragic life in Iran. We were treated with disdain and contempt and were subjected to all forms of discrimination. We were denied our rights and barred from work. We were not allowed to compete according to our qualifications with the Iranians of Persian origin. The policy of the Iranian government is almost identical with the policy followed in America to eradicate the Red Indians. The Iranian government dumped our area with drugs to poison the youths of the Arab origin, distance them from national politics and demoralise them. Moreover, that government cast them into prisons where they were subjected to all forms of intolerable terrorism, repression and torture.
My grandfathers had long ago migrated from Iraq and settled in Al Mohammarah on the Iranian-Iraqi borders. They cultivated vast areas of land which were not under Iranian sovereignty. But due to the weakness of Iraq, the Persian Empire imposed its hegemony on our cities and villages. Our people found themselves forced to abandon their Iraqi identity and Arabism and shift towards Persianism.
At the start of the Iranian Iraqi war (1980-1988), my grandfather, his elder son and grandson were arrested and detained. They were accused of dealing with the Republic of Iraq and hiding Iraqi weapons on their land. They were further accused with communicating information to the Iraqi government. In 1983, other members of my family were arrested. After a period, my grandfather and uncle were executed. My cousins remained imprisoned up till now.
Then my father and brother were arrested and cast into prison. They were sentenced to ten months imprisonment on charges of dealing and collaborating with the Iraqi authorities. After spending the period, they were released. During their imprisonment they were subjected to all forms of torture and persecution as they denied any relations whatsoever with Iraq. Their only sin was that they were of the Arab origin and took pride in their Arabic background and strongly denounced forcing our people in Al Ahwaz to deny their Arab nationalism and join the Persian nationalism.
The imprisonment of my father and brother was followed by the confiscation of our lands. The Iranian government also confiscated the truck operated by my father under the pretext of public interest and the seizure of the properties of traitors. They also claimed that the vehicle was used to transport weapons to the mountainous areas to activate the Movement of Arab Nationalism and achieve independence from the Persian hegemony. My father was threatened with being imprisoned again if he refused to accept the confiscation.
We had been cornered in a very dangerous situation as a result of these incessant security harassment, acts of revenge, continuous surveillance, raiding of our homes and places of work in search of arms and secret publications hostile to Iran and the Persian hegemony. In each act of raiding, they would take all of us to the security centres in the night for interrogation where we would be subjected to assaults, insults and threats. They wanted to force us to accept their political-religious system and the conception of the Persian Empire. They wanted to force us to realise that there would be no other solution and that any Arabic orientation would not be condoned. Acts of detention and torture became common practice each time we were led to the security centres. We would remain for a period exceeding one month in the detention. They would not release us unless after inflicting all forms of torture and assaults and after extracting a declaration of good behaviour and conduct.
In July 1999, an anti-government demonstration broke out in our area. I and my family felt we had to participate as an important sign of our people's emancipation and to call for respect of Human Rights and our Arabic heritage. We deliberately did not remain until the end of the demonstration, preferring to return to our home fearing the revenge of the Islamic authorities. We were taking our lunch when strong knocks were heard at the door. My mother went out to open the door fearing the security men to be there. As soon as she opened the door, the security men burst in and my mother fell on her head as they pushed her aside. She started to scream as blood poured out of her head. Faced with this unacceptable situation, we could not control our nerves. We entered into a sort of a battle with the raiders where we exchanged insults and punches. But they were more numerous and well armed. They arrested and controlled us. They did not give me time to aid my mother. We left her at the hands of my father who was alone appealing the human conscience to alleviate this heart-rending tragedy.
Thus, we were again cast into the security prison where we remained for a period of five months without any charge being leveled against us save resisting the security men at our house. We faced all forms of torture. We were only released on financial bail and a personal declaration given by my father.
Upon my release, I decided to leave the country seeking safety and freedom. Fearing to be detained again and probably liquidated, I left immediately for an agricultural area cultivated by one of my friends. I remained there away of the eyes of the security and started to look for a way out of Iran."
"7. It was put to the applicant that there are several ethnic groups within Iran and that country information indicates that none of them as a rule face serious discrimination on the basis of ethnicity alone. Despite wide documentation of human rights abuses that do take place in Iran, none of them refer to discrimination against those of Arabic ethnicity. The applicant indicated his problems were more on account of his political opinion."
Another change in his account appears from the following.
"8. The applicant was asked about the demonstration against the government he claimed to have been involved in 1999. The applicant said that he was not involved in any demonstration in 1999. He said he had been involved in one in 1998. The demonstration occurred because the government had been negligent in providing assistance to local residents after the area had been flooded. People had to sleep on the roof of their houses for five days. The residents drove trucks onto the highway and staged a blockade. Plain-clothes agent came and filmed those involved."
"I do not accept that the applicant has a well founded fear of persecution in Iran on account of his Arabic ethnicity. A search of available country information does not identify any reports that indicate that Iranians of Arabic ethnicity face any form of harm or discrimination amounting to persecution. Rather the available reports state that in general the Iranian government does not discriminate on account of race.I also note that the US State Department Country Report on Human Rights Practices for 1999 makes no mention of Arabic Iranians in its report concerning racial discrimination. Given the extensive coverage of human rights abuses that do occur in Iran, I consider the absence of any such report concerning ethnic Arabs is indicative of an absence of persecution of that particular racial group.
I also do not accept that the applicant has a well founded fear of persecution on account of his political opinion. The political opinion the applicant holds is one of pride in his Arabic heritage and ethnicity and this has been demonstrated by his refusal to adopt an Iranian identity and join in Iranian nationalistic activities.
There is no country information available which supports the applicant's claim that mere refusal to join in nationalistic activities will result in adverse attention such as arrest, detention and torture. The World Directory of Minorities reports the following about the Arab minority in Iran:
'There are probably one million Arabs, mainly Shia, living primarily along the Gulf littoral in the province of Khuzestan and more generally in the South. The Arabs of Khuzestan and of Southern Iraq form a cultural unit. Many Arabs on the coastline are Sunni, originally from the Arabian peninsula, and have a history since the sixteenth century of migrating between the east and west sides of the Gulf. They are thus thought of as neither wholly Iranian or wholly Arab. As a group they are known as Hawila. In spite of such factors, Iraqi attempts to foment unrest for the Pahlavis and the Islamic republic have been largely unsuccessful. Arabs of Khuzestan demanded autonomy like the Baluch, Kurds and Turkomans in 1979, but demonstrated their loyalty to the Islamic regime during the Iran-Iraq war 1980-1988.'
I consider that this report indicates that the Arabs in Iran are able to maintain their cultural identity without experiencing persecution from the Iranian government. The report states that the Arabs pushed for autonomy and gives no indication that this push resulted in treatment amounting to persecution. I consider that if the Iranian government tolerated the Arab push for autonomy, then the applicant's claim of arrest, detention and torture for merely not involving himself in Iranian nationalistic activities is inconsistent with country information. As such I am not satisfied that the applicant has a well founded fear of persecution in Iran on account of his political opinion.
In this context I note the inconsistencies between the applicant's claims put forward at his initial entry interview and those provided in his application for a protection visa. I do not accept the applicant's explanation for the inconsistencies in his statements and consider that they confirm my findings above that the applicant does not have a well founded fear of persecution for a Convention reason."
"The Member would be grateful if you could provide to her a written assessment of [the respondent's] general state of mind so that she can decide how best to conduct the hearing, and how well he is presently able to express himself and explain his actions. In particular she would like to know what to expect in terms of his ability to accurately recall incidents from his past. She also needs to know whether he is having difficulties in concentrating which might affect how he gives oral evidence at a hearing. She would appreciate any other observations you may wish to make which you think might assist her to take oral evidence from [the respondent]."
On 18 June 2002, the psychologist responded as follows.
"I am forwarding this information in response to your enquiry regarding the presentation of [the respondent]. I have had two formal interviews with [the respondent] and several informal interactions.General Presentation and Psychological State:
[The respondent] presents as extremely tense, and shows signs of being both emotionally and physically volatile. In general he presents as a very angry self-focused person. [The respondent] has had a lot of contact with the medical staff due to his self-harming behaviour, and continues to behave in a threatening fashion towards staff. After physically violent acts either to himself or property, [the respondent] shows no sign of remorse or reflection on his behaviour. I have discussed with [the respondent] managing his anger through physical activities available at the centre such as use of the gym, etc but [the respondent] is not receptive to these suggestions.
[The respondent's] Powers of Recall:
[The respondent] has not been interested in discussing his past with me however I don't believe that he cannot recall his past. He says it makes him too angry to discuss his past. He holds very strong views on a variety of situations but expresses his views in few words. [The respondent] has sworn on the Koran that if he gets a negative RRT he will kill himself. [The respondent] has referred to conversations we have had previously. He does not seem to have blurred or confused recall. Although [the respondent] is tense and angry I believe he has the ability and the resources to present information if he felt he would benefit from that process. [The respondent] claims to suffer from headaches, poor concentration, and insomnia through anxiety however it seems that many of his actions are still clearly thought through and premeditated so I believe he has the capacity to think through events if required."
"I asked [the respondent] what problems he thought he might have if he went back to Iran now, and what might motivate them. He responded that he would take his life rather than return to Iran. At this point in the hearing [the respondent] became highly agitated. As it was apparent that he was not in a condition to answer any further questions, I agreed to send my final questions to his new adviser (who was present via telephone link) in the hope that she could obtain his responses to them."
"The Tribunal has now received an assessment of [the respondent's] general state of mind (a copy of the Tribunal's letter requesting this, dated 11 June 2002, and the letter of assessment dated 18 June 2002, are enclosed). The Tribunal could infer from it that the inconsistencies in [the respondent's] account do not arise from blurred or confused recall."
The reference to "the inconsistencies" is to particular inconsistencies outlined earlier in the letter. They related to differences between the respondent's various accounts of his life in Iran earlier referred to in the Tribunal's reasons.
"After I arrived in Australia I was interviewed about why I had left Iran and come to Australia. I gave false or incomplete answers because I feared the consequences for my family if I told the truth about the persecution my family and I had been subjected to. I feared that the information about me and my family, and the fact that I was seeking asylum in Australia, might get back to the Iranian authorities. This fear was in part based on the fact that the interpreter was Iranian. I also feared that the Australian authorities would see me as a troublemaker or terrorist and refuse to allow me to stay in Australia....
I did not tell the truth about leaving Iran on a false passport at the first interview because I thought the Australian authorities would make adverse conclusions about me.
...
I told Dr Al Jabiri [the respondent's previous migration agent] of all the times I was arrested. Dr Al Jabiri told me I did not need to mention all the details of my history and arrests. Specifically, Dr Al Jabiri told me I did not need to mention: (1) my arrest during my last year at school for involvement in protest demonstrations and my subsequent expulsion from that school, (2) my involvement with community protests in 1998 against the government after our area had been flooded because people of the neighbouring area (occupied by wealthy oil company employees) had removed a water barrier protecting our suburb. He told me that my case was strong enough based on my last arrest. I relied on his expertise, believing Dr Al Jabiri knew how best to advance my application."
"[The respondent] was aged seven when the war with Iraq commenced, and was aged sixteen when it ended (in July 1988). I have considered the plausibility of his claims that his family continued to be subjected to harm because of a political opinion imputed to them arising from their membership of the Hamidi tribe and their family links with its late leader. It is the case that [the respondent's] evidence has changed over time as to his family's, and his own, problems in Iran after the end of the war in 1988. The Tribunal is asked to accept, in brief, that he may be suffering from Post Traumatic Stress Disorder, and that this has led to his not revealing all his claims from the outset, and has also given rise to some confusion in his description of particular events. I have not agreed to his adviser's request that he be assessed by a psychologist in order to confirm this. That is because I consider it highly likely that [the respondent] is suffering from PTSD, as indicated by his repeated incidents of serious self-harm while in detention. I therefore propose to accept that his ability to give evidence clearly has almost certainly been influenced by this. As to whether his current condition is a consequence of Convention-related events in Iran, (rather than during his period of over two years in detention in Australia, for example), it is for the Tribunal to make findings on the events which the [respondent] claims led to his decision to leave Iran.... Thus, rather than rely on the claims made by [the respondent] on various occasions before [the] hearing [on 26 June 2002], I propose to treat the oral evidence given by him at the hearing, coupled with the content of the written submissions from his adviser (30 July 2002) and himself (30 July 2002) after the hearing, as an accurate reflection of the claims he wishes to make."
The Federal Court
"There are a number of problems with this. First, there is simply no evidence before the Tribunal upon which it could be satisfied that the [respondent] was suffering from PTSD. I do not suggest that the Tribunal is under a duty to inquire whether a person has a mental disability, even where that person's behaviour may seem bizarre[106]. Certainly in this case there may not have been a jurisdictional error if the Tribunal had simply relied upon the psychologist. But the Tribunal did not do so. Nor could the member be criticized for not relying on the psychologist. She was perfectly entitled to reach the view, particularly after observing the [respondent's] behaviour, that she was not prepared to rely upon the psychologist. But the Tribunal was not entitled to diagnose the [respondent] as suffering from PTSD without evidence. To do so was an error as to jurisdiction.The second problem is that, even if the [respondent] is suffering from PTSD there was no evidence before the Tribunal, other than the quotations from the Turner report referred to above, which would enable the court to assess the effects of PTSD on the creditability of the [respondent]. As the above quotation makes clear, the Tribunal was prepared to rely upon the diagnosis of PTSD in relation to 'his ability to give evidence clearly.' It is not altogether clear what this means. What is clear though is that the Tribunal nevertheless made credit findings based upon inconsistencies in his evidence. For example, the Tribunal found that his first version of where he was living immediately prior to leaving Iran was true, and the later version untrue. The Tribunal analysed the issue in this way:
'These two assertions as to his whereabouts in the months leading to his departure from Iran are entirely irreconcilable, and he has not provided any explanation as to why they differ. I consider untrue his claim to have been in hiding throughout his last six months in Iran. I am satisfied that he was living at his family home throughout that period. It follows, and I am satisfied, that he was not detained again by the authorities because they did not wish to detain him. It also follows, as he willingly remained at his family home where he could be readily located by the authorities, that he did not fear arrest.'
But, having found that the [respondent] was suffering from PTSD there was no evidence before the Tribunal which would have enabled it to assess whether or not any of the evidence the [respondent] gave was reliable. Having (wrongly) diagnosed that the [respondent] was suffering from PTSD it was an error of law for the Tribunal then to proceed to make credibility findings in relation to the [respondent's] evidence without evidence as to what effect the PTSD might have on the [respondent's] capacity to give evidence.
The third problem is directly related to the second. Having found that the [respondent] was suffering from PTSD there was no evidence before the Tribunal which would enable the Tribunal to determine whether the [respondent] could properly take part in the proceedings. Having found that the [respondent] was suffering from a disease which affected his capacity to give evidence it was then incumbent upon the Tribunal to satisfy itself that the [respondent] could take part in the proceedings. The failure to do so was also an error of law.
In my view these errors were jurisdictional errors. The Federal Magistrate dealt with it in the following way:
'The RRT accepted that the applicant suffers from PTSD, on the basis of a psychologist's report obtained by the RRT. Having accepted the disability suffered by the applicant there was no need for the RRT to further prolong proceedings to obtain a further medical assessment. His legal advisers were apparently satisfied that they could obtain instructions from him and represent him. Persons suffering from PTSD commonly conduct legal proceedings without particular difficulty. The RRT took into account that the answers given by the applicant may be confused, consistent with his PTSD and adjourned proceedings early when it became apparent that the proceedings had become unproductive. The RRT took the precaution of submitting further questions in writing and obtain (sic) written answers from the applicant's legal representatives. This was, in my view, a proper approach for the RRT to take.'
However, the psychologist did not diagnose PTSD. As referred to above it seems to have first been mentioned in the submissions of the [respondent's] advisers. Any diagnosis seems to have been made by the Tribunal member. Further, the assumption made by the Federal Magistrate that many people with PTSD commonly conduct legal proceedings, does not deal with the problem of the capacity of this [respondent] to do so. This is particularly so when the Tribunal has accepted that the PTSD has affected the [respondent's] capacity to give evidence.
In my view the learned Federal Magistrate was in error in concluding that there were no errors of law in the reasoning of the Tribunal. In my view the relevant errors were jurisdictional errors."
The appeal to this Court
(a) The Court erred in holding that it was not open to the Tribunal to accept without evidence that the respondent had PTSD.
(b) The Court erred in holding that, having accepted that the respondent had PTSD, there was no evidence before the Tribunal which would have enabled it to assess whether or not any of the evidence the respondent gave was reliable.
(c) The Court erred in holding that, having found that the respondent had PTSD, it was incumbent on the Tribunal to satisfy itself that the respondent could take part in the review proceedings.
(d) The Court erred in holding that the errors identified were jurisdictional errors.
"(2) The Tribunal, in reviewing a decision:(a) is not bound by technicalities, legal forms or rules of evidence".
"Having found that the [respondent] was suffering from a disease which affected his capacity to give evidence it was then incumbent upon the Tribunal to satisfy itself that the [respondent] could take part in the proceedings."
This finding disregarded four matters: that a psychologist had carefully considered and assessed the respondent's capacity to remember and give a reliable account of his past; that the respondent had said that he was not disabled and wished to give evidence; that the Tribunal had the benefit of the Turner Report; and, that the obligation of any court or tribunal does not generally extend beyond an obligation to satisfy itself that a party can understand the nature of the proceedings and can give instructions and evidence as required, matters to which further reference will be made later.
"Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not, of itself, prevent them from being brought to trial. It certainly does not mean that they must be allowed to be at liberty. It is not to be overlooked, as Deane and Dawson JJ pointed out in Kesavarajah v The Queen[111], that the usual consequence of a finding that a person is unfit to plead is indefinite incarceration without trial. It is ordinarily in the interests of an accused person to be brought to trial, rather than to suffer such incarceration.In the case of R v Berry[112] Geoffrey Lane LJ, criticising a direction to a jury empanelled to determine an issue of fitness to plead, said:
'It may very well be that the jury may come to the conclusion that a defendant is highly abnormal, but a high degree of abnormality does not mean that the man is incapable of following a trial or giving evidence or instructing counsel and so on.'
The Ontario Court of Appeal, in R v Taylor[113], recorded the following propositions, agreed by counsel, as representing the state of authority in that province:
'(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial.
(b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.
(c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.
(d) The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.'
In the present case, the ultimate test to be applied is the statutory test set out earlier. However, each of the above propositions is sound, and they are consistent with the statutory test."
[1] SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176.
[2] Section 474 was inserted by Item 7 of the Schedule to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) and its commencement was controlled by s 2 of that statute read together with Item 8(2)(a) of the Schedule.
[3] (2003) 211 CLR 476 at 506 [76].
[4] See Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J, 646-647 [152] per Hayne J.
[5] See R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208 at 248 per Dixon J. See also Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 at 632 per Gaudron and Gummow JJ.
[6] R v Coldham; Ex parte Australian Workers' Union [1983] HCA 35; (1983) 153 CLR 415 at 419 per Mason ACJ and Brennan J. See also R v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Union, Australian Section [1951] HCA 3; (1951) 82 CLR 208 at 248 per Dixon J; Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 at 632 per Gaudron and Gummow JJ.
[7] See Darling Casino Ltd v NSW Casino Control Authority [1997] HCA 11; (1997) 191 CLR 602 at 635 per Gaudron and Gummow JJ.
[8] (2003) 211 CLR 476 at 502 [62].
[9] [2003] FCA 176 at [15].
[10] [2003] FCA 176 at [16].
[11] [2003] FCA 176 at [17].
[12] Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; (2002) 211 CLR 540 at 609 [183].
[13] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at 1172 [37], 1175 [52], 1194 [173]; cf at 1168 [9]; [2003] HCA 30; 198 ALR 59 at 67, 71, 98; cf at 62.
[14] [2003] FCA 176 at [16].
[15] Section 427 of the Act relevantly provides:
"(1) For the purpose of the review of a decision, the Tribunal may:
...
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination."[16]
Section 425A deals with the giving by the Tribunal of notices of invitations to appear before it. Section 426 relevantly provides (emphasis added):
"(1) In the notice under section 425A, the Tribunal must notify the applicant:
...
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice."[17]
[2003] HCA 30; (2003) 77 ALJR 1165 at 1172 [38]; [2003] HCA 30; 198 ALR 59 at 68.
[18] [2003] FCA 176 at [16].
[19] See Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1.
[20] Section 420 of the Act provides:
"(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a) is not bound by technicalities, legal forms or rules of evidence; and
(b) must act according to substantial justice and the merits of the case."[21]
By its own provisions the Evidence Act 1995 (Cth) only applies to proceedings in a federal court or a court of the Australian Capital Territory: see s 4 and s 3, together with the extended definition of "federal court" in the Dictionary to that Act.
[24] See ss 5(1) (definition of "non-citizen"), 45 and 46(1)(b) of the Act, read together with Item 1401 of Sched 1 to the Migration Regulations 1994 (Cth).
[25] See s 474 of the Act and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
[26] (2003) 211 CLR 476 at 508 [83]. As to natural justice and jurisdictional error, see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57.
[27] [2003] HCA 1; (2003) 211 CLR 441.
[28] [2003] HCA 1; (2003) 211 CLR 441 at 457 [29]- [32], 471 [86]-[88].
[29] [2003] HCA 1; (2003) 211 CLR 441 at 471 [85].
[30] [1960] HCA 68; (1960) 104 CLR 437.
[31] [1960] HCA 68; (1960) 104 CLR 437 at 446.
[32] [2003] HCA 1; (2003) 211 CLR 441 at 469 [80].
[33] [2003] HCA 1; (2003) 211 CLR 441 at 469 [80].
[34] (1874) LR 5 PC 417. The authorities cited in argument (at 437) had included R v Bolton [1841] EngR 193; (1841) 1 QB 66 [113 ER 1054]; Brittain v Kinnaird [1819] EngR 713; (1819) 1 Brod & B 432 [129 ER 789] and Mould v Williams [1844] EngR 100; (1844) 5 QB 469 [114 ER 1326].
[35] Section 244 of the Mining Statute 1865 (Vic) read:
"No proceedings under this Act shall be removed or removable into the Supreme Court save and except as hereinbefore provided."
cf (1874) LR 5 PC 417 at 422-423, 440.
[36] (1874) LR 5 PC 417 at 442.
[37] De Smith's Judicial Review of Administrative Action, 4th ed (1980) at 409 (footnote omitted).
[38] (2003) 211 CLR 476 at 502 [64].
[39] Administrative Law, 7th ed (1994) at 742.
[40] (2003) 211 CLR 476 at 502 [64].
[41] SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 176.
[42] Pursuant to the Federal Court of Australia Act 1976 (Cth), s 25(1A), which permits the Chief Justice of the Federal Court to allow the appellate jurisdiction of the Federal Court to be exercised by a single judge.
[43] The respondent's name has been anonymised pursuant to the Migration Act 1958 (Cth), s 91X. See Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 495-496 [44]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1; (2003) 211 CLR 441 at 461-462 [50]; Germov and Motta, Refugee Law in Australia, (2003) at 712.
[44] Migration Act 1958 (Cth), s 36(2)(a).
[45] Pursuant to the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, [1954] Australian Treaty Series No 5; Protocol relating to the Status of Refugees done at New York on 31 January 1967, [1973] Australian Treaty Series No 37. See Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 287.
[46] Section 474, a "privative clause", was inserted into the Act in 2001: Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Section 474 limits, but does not exclude, the jurisdiction of this Court to review decisions of the Tribunal. A decision of the Tribunal will not be protected from review by the privative clause where the decision involves jurisdictional error: Plaintiff S157/2002 (2003) 211 CLR 476 at 504-507 [71]-[78]; Robertson, "Truth, Justice and the Australian Way - Plaintiff S157 of 2002 v Commonwealth", (2003) 31 Federal Law Review 373.
[47] SGLB [2003] FCA 176 at [6], quoting Plaintiff S157/2002 (2003) 211 CLR 476 at 506 [76].
[48] Reasons of Gummow and Hayne JJ at [23]-[34]; reasons of Callinan J at [98]-[115].
[49] SGLB [2003] FCA 176 at [18]. The Federal Magistrate's decision is SGLB v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FMCA 309.
[50] SGLB [2003] FCA 176 at [15].
[51] SGLB [2003] FCA 176 at [16].
[52] SGLB [2003] FCA 176 at [17].
[53] SGLB [2003] FCA 176 at [8].
[54] SGLB [2002] FMCA 309 at [3].
[55] SGLB [2003] FCA 176 at [6], with reference to Plaintiff S157/2002 (2003) 211 CLR 476.
[56] SGLB [2002] FMCA 309 at [9].
[57] SGLB [2002] FMCA 309 at [9].
[58] SGLB [2002] FMCA 309 at [23].
[59] Gattellaro v Westpac Banking Corporation [2004] HCA 6; (2004) 78 ALJR 394 at 405 [74]; [2004] HCA 6; 204 ALR 258 at 273.
[60] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, 291; Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 at 254 [105].
[61] SGLB [2003] FCA 176 at [20].
[62] The Act, s 474; Plaintiff S157/2002 (2003) 211 CLR 476 at 504-507 [71]-[78].
[63] Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272, 291-292; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 585-586; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 372 [153]. See also Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-287.
[64] SGLB [2003] FCA 176 at [3].
[65] [1999] HCA 14; (1999) 197 CLR 510 at 577-578 [191] per Gummow and Hayne JJ. See also Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 369 [143], 373 [156]-[157]; Rajamanikkam [2002] HCA 32; (2002) 210 CLR 222 at 248-249 [91].
[66] Minister for Immigration and Multicultural Affairs v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1 at 70-71 [198]; Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 373 [156]- [157]. See also Schloenhardt, "To Deter, Detain and Deny: Protection of Onshore Asylum Seekers in Australia", (2002) 14 International Journal of Refugee Law 302; Edwards, "Tampering with Refugee Protection: The Case of Australia", (2003) 15 International Journal of Refugee Law 192.
[67] Reasons of the Refugee Review Tribunal, unreported (N02/42401), 13 August 2002 ("Reasons of the Tribunal") at 35.
[68] Reasons of the Tribunal at 35, referring to United States Department of State, Bureau of Democracy, Human Rights, and Labor, Country Reports on Human Rights Practices 2001: Iran, (March 2002).
[69] Skelton, "Returnees arrested in Iran", The Age, Melbourne, 29 April 2002 at 5, in evidence before the Tribunal.
[70] United Nations High Commissioner for Refugees, Handbook On Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, (1979, reedited Geneva, January 1992) ("UNHCR Handbook") at [203]. This paragraph, also appearing in the 1979 version of the UNHCR Handbook, was quoted in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 at 425.
[71] See the Act, ss 209, 210; Judiciary Act 1903 (Cth), 26. Also see Germov and Motta, Refugee Law in Australia, (2003) at 722.
[72] Reasons of the Tribunal at 28.
[73] Reasons of the Tribunal at 16.
[74] Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615 at [2]- [5]. See also UNHCR Handbook at [198]-[200].
[75] [2002] HCA 32; (2002) 210 CLR 222 at 248 [91].
[76] Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] 1167 FCA.
[77] Hathaway, The Law of Refugee Status, (1991) at 84-87; Taylor, "Informational Deficiencies Affecting Refugee Status Determinations: Sources and Solutions", (1994) 13 University of Tasmania Law Review 43 at 64-71. See also Sivalingam [1998] 1167 FCA; Abebe v The Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 577 [190] per Gummow and Hayne JJ; Kneebone, "The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?", (1998) 5 Australian Journal of Administrative Law 78.
[78] The Act, ss 411, 414, 415, 420, 425, 426, 427, 430.
[80] Evidence Act 1995 (Cth), ss 3, 4(1) and Dictionary; the Act, s 420.
[81] Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 69-70 [31]-[32]; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28; (2001) 75 ALJR 982 at 990 [29]- [30]; [2001] HCA 28; 179 ALR 425 at 435; Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 76 ALJR 966 at 1001 [208]; [2002] HCA 30; 190 ALR 601 at 648; Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 (2003) [2003] HCA 60; 77 ALJR 1909 at 1918-1919 [57], 1922-1923 [81], 1923 [86], 1924 [88]; [2003] HCA 60; 201 ALR 437 at 450, 455-456, 457; Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 78 ALJR 678 at 697 [97]; [2004] HCA 18; 205 ALR 487 at 513.
[82] Plaintiff S157/2002 (2003) 211 CLR 476 at 489-490 [25], 494 [38], 508 [83].
[83] Plaintiff S157/2002 (2003) 211 CLR 476 at 508 [83].
[84] Reasons of the Tribunal at 28.
[85] "Discrepancies and Delays in Asylum Seekers", cited in the letter from the respondent's agent to the Tribunal.
[86] UNHCR Handbook at [207]-[208].
[87] Letter from the respondent's agent to the Tribunal, quoting from Dr Turner's report.
[88] UNHCR Handbook at [207]-[208] (emphasis added).
[89] SGLB [2003] FCA 176 at [14]- [20].
[90] SGLB [2002] FMCA 309 at [23].
[91] SGLB [2003] FCA 176 at [18].
[92] The Act, ss 420, 425, 426, 427.
[93] eg R v Samuel Hill (1851) 2 Den 254 [169 ER 495].
[94] Miah (2001) 206 CLR 57 at 83 [89] per Gaudron J.
[95] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 575-579, 582-585 per Mason J.
[96] Potter v Minahan [1908] HCA 63; (1908) 7 CLR 277 at 304; Ex parte Walsh and Johnson; In re Yates [1925] HCA 53; (1925) 37 CLR 36 at 93.
[97] Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 17-18; Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427 at 436-438; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 77 ALJR 40 at 49 [43], 57 [90]; [2002] HCA 49; 192 ALR 561 at 573, 584-585; Attorney-General (WA) v Marquet [2003] HCA 67; (2003) 78 ALJR 105 at 134 [167]- [168]; [2003] HCA 67; 202 ALR 233 at 273.
[98] Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 614-619 per Brennan J.
[99] Gattellaro [2004] HCA 6; (2004) 78 ALJR 394 at 397 [15]- [18], 404-405 [68]-[69]; [2004] HCA 6; 204 ALR 258 at 262, 272. See also Holland v Jones [1917] HCA 26; (1917) 23 CLR 149 at 152-154; Woods v Multi-Sport Holdings Pty Ltd [2002] HCA 9; (2002) 208 CLR 460 at 478-481 [64]- [68].
[100] The Minister relied on Coal Miners' Industrial Union of Workers of Western Australia v Amalgamated Collieries of Western Australia Ltd [1960] HCA 68; (1960) 104 CLR 437 at 446.
[101] Plaintiff S157/2002 (2003) 211 CLR 476 at 501-504 [61]-[70].
[102] (2003) 211 CLR 476.
[103] (2003) 211 CLR 476 at 488 [19]. See also the joint reasons in that case at 506-507 [77]-[78].
[104] Article 1A(2) of the Convention relating to the Status of Refugees adopted on 28 July 1951, as amended by the Protocol relating to the Status of Refugees adopted on 31 January 1967, defines a refugee as any person who:
"owing to well-founded fear of being persecuted for reasons 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."
[105] A barrister participated in the video link hearing on 26 June 2002 by telephone, together with the migration agent.
[106] See Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1.
[107] "Powers of the Refugee Review Tribunal etc.
For the purpose of the review of a decision, the Tribunal may:
...
(d) require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination."
[108] Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; (1995) 183 CLR 273 at 290.
[109] Section 426 of the Act provides:
"Applicant may request Refugee Review Tribunal to call witnesses
(1) In the notice under section 425A, the Tribunal must notify the applicant:
(a) that he or she is invited to appear before the Tribunal to give evidence; and
(b) of the effect of subsection (2) of this section.
(2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.
(3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice."
[110] [2000] HCA 29; (2000) 203 CLR 1 at 14-15 [24]- [27].
[111] [1994] HCA 41; (1994) 181 CLR 230 at 249.
[112] (1977) 66 Cr App R 156 at 158.
[113] (1992) 77 CCC (3d) 551 at 564-565.
[114] "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:
...
(i) a decision on review of a decision, irrespective of whether the decision on review is taken under this Act or a regulation or other instrument under this Act, or under another Act".