FEDERAL COURT OF AUSTRALIA WABU v Minister for Immigration & Multicultural Affairs [2002] FCAFC 203 MIGRATION – appeal – refusal of protection visa – whether Tribunal in error of law – whether no evidence before Tribunal – whether primary judge in error of law in findings of fact on additional evidence Migration Act 1958 (Cth) ss 5(1), 36(2), 48B, 417, 476(1)(e), 476(4)(b) Federal Court Rules O 80 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 referred to Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 referred to Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 referred to Minister for Immigration & Multicultural Affairs v Farahanipour (2001) 181 ALR 535 referred to WABU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W521 of 2001 GRAY, RD NICHOLSON and EMMETT JJ 25 JUNE 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W521 of 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WABU APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GRAY, RD NICHOLSON and EMMETT JJ DATE OF ORDER: 25 JUNE 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W521 of 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: WABU APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: GRAY, RD NICHOLSON and EMMETT JJ DATE: 25 JUNE 2002 PLACE: PERTH REASONS FOR JUDGMENT THE COURT: 1 The appellant, a male person then aged 20 years, arrived in Australia on 20 December 2000. On 9 January 2001 he applied for a protection (class XA) visa. On 13 February 2001 a delegate of the respondent refused that application. On 10 April 2001 the Refugee Review Tribunal ("the Tribunal") affirmed the decision of the delegate. On 1 November 2001 Carr J dismissed an application for review of the Tribunal decision. That application, like the application for the protection visa, was made in reliance on provisions in Migration Act 1958 (Cth) ("the Act"). The appellant now appeals from the decision of Carr J. Because of the date at which the appellant applied for judicial review, his application and the appeal must be dealt with pursuant to the provisions of s 476 of the Act as they stood prior to amendments which came into operation on 2 October 2001. 2 The criterion for a protection visa is whether, at the time of the decision, the decision-maker is satisfied that the appellant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ("the Convention"): ss 5(1) and 36(2) of the Act. In accordance with Art 1A(2) of the Convention, to qualify as a refugee an applicant must show that "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, he … is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…". Appellant's claims 3 In his arrival interview the appellant claimed that he came to Australia because his life was in danger. He said this arose because in the last year of his university studies he was involved in activities in relation to freedom of speech and basic human rights. These were known to the Basiji militia group. Although he did not belong to a political group, the Basiji nevertheless requested he cooperate with them and spy on colleagues. He refused. He claimed that because of this refusal he was arrested by security agents in March 1999 and bashed severely until his father obtained his release after four hours. As a result of the assault he was deaf in his left ear. This gave him an exemption from military service. He left Iran because of a fear that the Basiji (and another intelligence organisation, Sepah) would continue to harass him. 4 In a statement prepared by his migration agents and accompanying his application for the visa the appellant repeated essentially the same story but with some further details. He said that his father was a Colonel in the Police Force and had obtained his release on the basis that the appellant would not take any part in any more anti-government activities and would spy on other people. Until November 2000 he said he had pretended he was cooperating with the government to stay out of trouble. He still had very strong anti-government political views. His father was concerned he would engage in further anti-government activities and arranged for him to leave the country. He said his fear was that if he returned to Iran he would continue to oppose the government and that would lead to him being killed. He claimed his fear was based on his anti-government political views and ideas. Tribunal's findings and reasoning 5 In its reasons the Tribunal again set out the appellant's claims substantially in the same form as previously referred to. The Tribunal then stated: "He told the Tribunal that he does not know what has happened to his father. He said his mother had not told him anything about him, except some time ago she informed him he had been taken away. Apparently he knew this before the interview with the delegate. The Tribunal pointed out that it is a significant aspect of his claims to omit from each of his submissions until the hearing. He said that he did not trust the lawyer allocated to him by the government and explained that lawyer called him about three weeks ago and demanded that he speak to him when the Applicant had to get out of bed and speak without breakfast. He said he was waiting to tell the Tribunal." 6 In its findings the Tribunal accepted that the appellant was outspoken at university, was beaten by three members of the Basiji in March 1999, was subsequently detained by Iranian authorities for six hours during which he was beaten and suffered a serious hearing impediment. It further accepted his father had used his influence as a police colonel to arrange the appellant's release. It also found he had left the country legally through the Tehran airport without encountering difficulties. It therefore found that in all the circumstances the Iranian authorities had no adverse interest in the appellant when he left the country. It said further that any fears of persecution he harboured at that time were ill-founded as there was not a real chance they would be realised. 7 The Tribunal then turned to the appellant's claims that new circumstances had emerged since his departure to both support his claim that he left because he is a refugee and give rise to claims that he has become a refugee sur place, namely the claims in relation to his father. Of these the Tribunal said: "It is an account that does not sit comfortably with his father's position as a police colonel, his capacity to successfully intervene when the Applicant was detained and the lack of any action against him while the Applicant remained in Iran. The Tribunal does not accept his explanation that he only disclosed his father's disappearance at the hearing because he did not trust his lawyer." The Tribunal concluded that in all of the circumstances it was satisfied the appellant's father's disappearance was not mentioned in the earlier submissions because he had not disappeared and it did not accept that his father had been harassed since the appellant left Iran. 8 Based on the appellant's evidence that he had left the country legally, the Tribunal found he did not face persecution for that reason. In relation to the application for refugee status, the Tribunal was not satisfied there was a real chance he would encounter persecution as a consequence of that application. 9 The Tribunal therefore concluded that there was not a real chance that the harm the appellant fears might be realised if he returned to Iran. It was accordingly not satisfied he had well-founded fears of persecution for Convention reasons so that he was not a person to whom Australia owed protection obligations and so could not satisfy the criterion for the grant of a protection visa. Reasoning of primary judge 10 When the matter came on before Carr J on 1 August 2001 the appellant produced a letter which he said was from his mother in Iran ("the Letter"). The appellant sought to tender it as proof that his father had vanished. The hearing was adjourned so that the Letter could be translated into English. At the resumed hearing on 30 October 2001 the respondent raised no objection to the Letter being received into evidence. Carr J decided to approach the matter on the basis that the appellant was putting forward a submission that the Tribunal based its decision on the existence of particular facts and that those facts did not exist, that is a reliance upon s 476(4)(b) of the Act. The particular facts were that the appellant's father had been harassed since the appellant left Iran and had, after being taken away by Iranian authorities, disappeared. For that purpose he assumed, without deciding, that s 476(4)(b) of the Act could apply to the non-existence of a particular circumstance. He proceeded on the basis that the Tribunal's finding the particular facts played such a part in the process of its reasoning that, had it found otherwise, the Tribunal would not have reached the conclusion which it did: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744. 11 In the Letter the appellant's mother asserted that the father had been removed by intelligence and security forces and she had not heard of him since. Carr J found that the Letter did not establish, on a balance of probabilities, the facts which it asserted because it conflicted in a material respect with the appellant's own evidence. Furthermore, it was sent by registered post a few weeks after the appellant had lodged his application for review by this Court. It contained no family news. Carr J considered it supported the inference that the appellant asked his mother to provide something in writing to the effect that his father had been arrested. He therefore did not think he could safely rely on the contents of the Letter being true. Accordingly, it did not establish that the particular facts did not exist. Furthermore, he found that it was open to the Tribunal to find that the particular facts did exist for the reasons it stated. Therefore the no evidence ground was not made out. 12 The other ground relied upon before Carr J was error of law. His Honour found no error either in the interpretation or application of the law. Therefore the other ground of review, reliant upon s 476(1)(e) of the Act, was not established. 13 His Honour also dealt with factual matters raised by the appellant which were not within the jurisdiction of the court to address. Finally, he pointed out that the Tribunal had rejected the appellant's claims essentially because it did not believe him. Grounds of appeal 14 In appealing to this Court the appellant relies on grounds only that "the decision is contrary to law" and that "the decision places the [appellant] at serious risk of being forcibly returned to Iran where he has a well-founded fear of being persecuted". These grounds do not raise any appealable error. Understandably that is the case because the appellant is neither legally trained nor legally represented. 15 We have therefore examined the reasons of the Tribunal and the reasons of Carr J and taken into the account the matters raised by the appellant before us. However, it is important that it be understood that the role of the Court on judicial review of a decision of the Tribunal is a limited one. The Court is not able to look at the matter afresh and make its own decision about the merits of an application for a protection visa. It can only review a decision of the Tribunal if it finds that the Tribunal has made an error of a kind bringing the case within one of the grounds specified in s 476 of the Act. Those grounds are limited. Reasoning 16 In his oral submissions to this Court the appellant raised the following matters. The Letter 17 The appellant made submissions regarding several aspects of the findings of the primary judge in relation to the Letter. The first was that there existed no foundation for the finding that the appellant's evidence was that his mother had told him of his father's removal before the appellant's interview with the respondent's delegate. That was a finding of the Tribunal recounted by the primary judge. He submitted from the bar table that he had received an initial interview on arrival; that was followed by an entry interview; he then consulted a lawyer; next he saw the case officer. After that he was transferred to a detention centre. Only then did he have access to a telephone to enable him to contact his mother. He submitted he did not therefore have knowledge of his father's disappearance until after the delegate's decision. 18 The relevant paragraph in his Honour's reasons read: "The applicant's evidence before the Tribunal was that his mother had told him that his father had been taken away. He said that she had told him this before his interview with the respondent's delegate. That interview took place on 12 January 2001. The applicant told the Tribunal that he did not tell his lawyer (whom he had consulted some three weeks before the hearing) about the fact that his father had been taken away, because he did not trust the lawyer. The hearing took place before the Tribunal on 2 April 2001. The applicant's lawyers' written submissions to the Tribunal were dated 28 March 2001, so it is reasonable to infer (and I do infer) that the applicant gave instructions to those lawyers at some time in March 2001 at a time when he was aware (on his case) that his father had been taken away by the Iranian authorities." 19 It is apparent from reading the paragraph as a whole that it was not material to his Honour's reasoning that the appellant had been so advised before the interview with the respondent's delegate. What was material was that the appellant had not instructed his lawyer in relation to his father's position. The issue had been omitted from the appellant's submission prior to the hearing before the Tribunal as a consequence of his not so instructing his lawyer. Even if the finding of advice prior to the delegate's decision was an error of fact, it was not material to the reasoning of the primary judge. 20 Secondly, the appellant sought to contest his Honour's finding that it was significant there was no family news in the Letter. He sought to explain this by saying that although the Letter was the first written communication which he had received, there had been earlier telephone communications which had given him family news. However, he was unable to explain how it was that his mother had written to him in the Letter in terms that she was communicating to him for the first time that his father had been removed when that was clearly not the case. It was from that statement that his Honour concluded that, if it was true she had already told him of that matter, she would not have been likely to use the language chosen in the Letter. That was an inference open to him and did not depend on his finding concerning the absence of family news in the Letter. 21 Thirdly, the appellant contended there was a good reason for him not trusting his lawyer. In the submissions which had been made on his behalf to the Tribunal, the lawyer had described his departure from Iran as in the category of an illegal departure. However, as the reasons of the Tribunal recorded, he agreed that he had not left the country illegally and so did not face persecution for that reason. He also lacked trust in the lawyer due to absence of any advice or appearance by him at the Tribunal. None of these matters provide a foundation to vitiate the findings of the primary judge in relation to the Letter. 22 In our opinion it was open to his Honour to make the findings which he did in relation to the Letter. Credibility 23 The appellant also submitted that because the lawyer had submitted (wrongly) that he had departed Iran illegally, the lawyer's submissions may have damaged his case by reflecting on his credibility. However, reference to the reasons of the Tribunal shows that not to be the case. After accepting that the appellant did not leave the country illegally and did not face persecution for that reason, the Tribunal recorded that it appeared the lawyer had "taken licence" to add that claim. The added claim was not considered adversely to the appellant or his credibility. Procedural unfairness 24 The appellant submitted that while he was making his submissions to the Tribunal the member had been engaged in sketching. He submitted he was not stating that the Tribunal did not properly hear and deal with his case. However, he said the conduct of the Tribunal member made him nervous and affected the quality of his presentation. 25 He particularly related this to when he was recounting matters concerning his father. Reference to the Tribunal reasons shows, however, that the Tribunal appreciated that issue was "a significant aspect of his claims". It gave attention to them. 26 Even if the facts could be established as alleged by the appellant, they do not, on his own submission, affect the attention to his case and consequently are of no substance in establishing any procedural unfairness. Failure to adjourn 27 As the reasons of the primary judge recount, at the hearing on 1 August 2001 the appellant produced the Letter. As a consequence the hearing was adjourned and was re-listed for 30 October 2001. 28 Before us the appellant produced a letter to the Court dated 29 October 2001 said to be faxed to it on that date requesting an adjournment due to ill health. With consent on behalf of the respondent, the letter was received into evidence. The appellant claimed that as a consequence of his ill-health he would be unable to speak. However, reference to the reasons of the Tribunal show that he made submissions during the hearing on 30 October 2001. 29 The appellant then submitted that nevertheless there were other matters which he would have said had he been in better health. He was invited by this Court to now state them to the Court. He did not state any matters additionally other than those addressed in these reasons. 30 Nothing therefore arises from these matters to vitiate the decision of the primary judge. Future probabilities 31 The appellant then submitted that while he had in the past given an undertaking in Iran not to express his opinion against the regime, he would not in the future be able to sit quiet and not give expression to his political opinions. He said his position in this respect had been worsened by the fact (as he claimed) that a roommate in the detention centre had taken information concerning him back to Iran to add "to his problems". 32 Whether the primary judge and the Tribunal were in error of law falls to be assessed on what was before them at the time. So far as these particular submissions seek to raise new evidentiary matters, they cannot ground error in either of those prior decisions. Communications with Embassy 33 The appellant claimed to have had a meeting in the camp in which he is detained with a representative of the Iranian Embassy. He claimed his motive for doing that was to seek the assistance of the Embassy in respect of the well-being of his father. He had, however, frankly stated his political opinions to the representative. 34 On behalf of the respondent it was accepted that whether he had in fact met with such a representative could be accepted on the basis that it could be easily substantiated. However, counsel for the respondent was uninstructed as to whether what the appellant claimed he had stated to the representative of the Embassy had in fact been stated. 35 The respondent claimed that the meeting and consequently his statement had occurred after the decision of the primary judge. Consequently, the occurrence of the statement, if in the terms claimed by the appellant, cannot assist in establishing error of law in the decision of either the Tribunal or the primary judge. As to whether the statement may have future relevance, we have given further consideration below. Respondent's submissions 36 The appellant also contended that he had only received the written submissions for the respondent shortly before the Court sat. In the course of submissions it transpired that the submissions had been "broadly" translated to him by the interpreter prior to the sitting of the Court. We were of the opinion that the matters canvassed in the written submissions for the respondent addressed matters which had been addressed by the appellant. Accordingly, we did not consider that it was necessary for further time to be allowed to the appellant to provide any further response to them. Summary 37 Having considered those matters and the reasons of the primary judge and the Tribunal, we are of the view that Carr J was correct in his conclusions in relation to the no evidence ground. He was entitled to reach the view which he did in relation to the Letter. That being the case, there was clearly other evidence on which the Tribunal could reach its view adverse to the appellant. 38 We also consider Carr J was correct in the view he took of the alleged error of law. There was no misinterpretation or misapplication of the law to the facts. 39 None of the additional matters raised before us by the appellant raise any issue of jurisdictional error: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [82]. Referral for legal assistance 40 It was accepted on behalf of the respondent that in the event the nature of the appellant's statement to the Embassy representative is established in the terms claimed by him, that may provide a basis for him to apply to the Minister for consideration of the exercise of the Minister's discretion to enable him to bring a fresh application or to have a more favourable decision substituted: see s 48B and s 417 of the Act and Minister for Immigration & Multicultural Affairs v Farahanipour (2001) 181 ALR 535. The appellant claimed that his motivation for the statement was directed to the well-being of his father. It was not, therefore, apparent that the statement had been motivated by an intent to manufacture a basis for a claim. In these circumstances we consider that the appellant should have the benefit of advice in relation to his rights, if any, in relation to what was said in that respect. Accordingly, we have made arrangements to refer the appellant to a legal practitioner for legal assistance in relation to that question. Conclusion 41 As there is no basis on which the appeal can succeed, it must be dismissed. I certify that the preceding forty - one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Gray, RD Nicholson and Emmett. Associate: Dated: 25 June 2002 The Appellant represented himself Counsel for the Respondent: Mr PR Macliver Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 22 May 2002 Date of Judgment: 25 June 2002