Case: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231
Outcome: considered
At the hearing, Mr Estcourt QC for the appellant submitted that there were essentially three separate bases for the appellant's case, namely: 1. No evidence: If there is no evidence in the case of a critical step in the Tribunal's ultimate conclusion then that constitutes a jurisdictional error. The critical step in this case was in respect of the Tribunal concluding that, once the appellant went back to Iran and was intercepted and interrogated by the authorities, they would accept his explanation about his United States navy service. There was no material as to how the Iranian authorities might react to the appellant's navy service and that is jurisdictional error: SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 and re Minister for Immigration and Multicultural Affairs ex parte Epeabaka [2001] HCA 23 ; (2001) 206 CLR 128. 2. " Wednesbury unreasonableness". The Tribunal's decision must be rational and logical and based on findings: Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223, SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231. 3. The state of satisfaction that there was no well founded fear of persecution was not formed reasonably on the material before the Tribunal: Applicant M164/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 16. 23 It is clear that in reaching its decision, the Tribunal is not limited to the evidence that is formally put before it: s 353(2) Migration Act . As observed by the Full Court in SFGB [2003] FCAFC 231 at [21] : "Subject to the other provisions of the Act, including the implied and express requirements of procedural fairness, the Tribunal can inform itself as it thinks fit, including acting on information that is 'public'. Nor should it be forgotten in this context that in the course of their duties Tribunal members may well come to have a relatively detailed understanding of the political and legal situation in various parts of the world. Within the limits imposed by the Act itself there is nothing to prevent members from using this information." 24 In this case the Tribunal considered both information provided by the appellant, and "public" information. In summary, this information was: &#8226; that the appellant "has been out of the country for 26 years, mostly living in a Christian country that is Iran's sworn enemy; he has worked in the United States Navy and will be imputed to be opposed to Iran for that reason; he has publicly supported the Shah and criticized the government that replaced him; he has avoided military service; and he has become a Christian" &#8226; the appellant held the rank of "airman" in the United States Navy, that his role was to inspect aircraft, and that he had a low security clearance &#8226; that active monarchists who are associated with parties that wield influence outside Iran might encounter difficulties if they returned to Iran. The Tribunal noted a document entitled Final Report (Iran) published by the UNHCR and the Austrian Centre for Country of Origin Asylum Research and Documentation (ACCORD) at the seventh European country of origin information seminar in Berlin (11-12 June 2001) &#8226; the Australian Department of Foreign Affairs and Trade advised on 17 March 2003 that there was no evidence of Iranian authorities actively targeting supporters of the former Shah, although an individual caught handing out pro-monarchist leaflets in Iran would likely be arrested &#8226; the UK Home Office report Iran Assessment October 2003 which observed that the current regime in Iran has not in the past nor does it now act against Iranians simply because they or their relatives were members of the Rastakhiz Party, which was established by the Shah in 1975 to run a one-party State. The report also noted that: "There is no evidence of any pattern of action by the regime today against Iranians simply because at one time they were middle-level or low ranking functionaries of the Shah's bureaucracy." &#8226; the UK Home Office report Country Assessment Iran, October 2003 which noted that proselytising apostates who commence preaching Christianity are likely to face execution, although there had been no reports of persons being executed on the grounds of conversion from Islam since 1994, and in practice Muslim converts to Christianity may face obstacles such as not being admitted to university or not being issued with a passport. 25 The appellant submits that, in reaching its decision, the Tribunal erred in concluding that, once the appellant went back to Iran and was intercepted and interrogated by the authorities, they would accept his explanation about his United States military service. The appellant draws attention to the findings of the Tribunal that: "It is likely that he will be questioned and his past will be examined and will disclose that his family members were supporters of the Shah, that the Applicant made some critical comments about the government some 25 years ago and that he worked in the USA Navy for more than two years. The Tribunal finds that the authorities will have no interest in punishing him for historical connections to the Shah's regime or for criticising the Revolutionary government when it first came to power, particularly as he has not been politically active or otherwise critical in the intervening 25 years. His service was 13 years ago and he only reached the relatively lowly rank of airman. He voluntarily left after a little more than two years. The Tribunal does not accept the argument that he will be imputed to be an enemy of Iran because he was employed by the Navy. The authorities can examine his service records and question him to satisfy themselves that his service does not disclose he is any threat of Iran. He can inform them that he was never properly rewarded for his study efforts in the Navy. It finds that he does not face a real chance of persecution related to his US Navy service, for that reason alone or in combination with other aspects of his claims..." 26 In particular, the appellant submitted that there was no material before the Tribunal as to how the Iranian authorities might react to the appellant's navy service. Accordingly, the findings of the Tribunal in relation to the view the authorities might take was based on no evidence, and amounted to jurisdictional error. 27 In relation to this issue, at the hearing Mr Bickford for the first respondent submitted: "So the fact that the Tribunal, in making its finding that he was in its view not likely to suffer a real chance of persecution related to his US naval service for that reason alone or in combination with other matters doesn't necessarily attract criticism by way of jurisdictional error simply because there was no direct evidence before the Tribunal as to what would happen if he was placed in that situation. In other words, inevitably in cases of this nature there won't be perfect evidence before the Tribunal. The Tribunal can't know for absolute certain what will happen in the event that this gentleman is returned to Iran and questioned about these matters. It can only make findings based upon the evidence that it does have and based upon its own experience and its own views. That's all it can do. So to say there's no evidence to support a finding that - the actual findings being that he would not be imputed to be an enemy of Iran because he was employed by the Navy, well, that's a finding that's open to them on the evidence that they have. It's not a finding that they must make. They might have gone the other way, but that's their role. It's a fact-finding role and the fact-finding has to be based on the evidence available, which is the evidence offered by the applicant." (TS p 14 ll 27-43)