FEDERAL COURT OF AUSTRALIA W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211 MIGRATION – refugee – refusal of a protection visa - appellant requested Tribunal hear evidence from a witness - whether Tribunal erred by failing to hear the witness – whether Tribunal erred by failing to consider relevant material Migration Act 1958 (Cth) ss 65, 414, 420, 424A, 425, 426 Inderjit Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73 referred to Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263 referred to Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 referred to Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 referred to W412/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 432 cited W396/01 v Minister for Immigration & Multicultural Affairs [2002] FCA 455 cited W360/01A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W360 OF 2001 LEE, CARR & FINKELSTEIN JJ 10 JULY 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W360 of 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: W360/01A Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGES: LEE, CARR & FINKELSTEIN JJ DATE OF ORDER: 10 JULY 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made on 1 August 2001 be set aside and the following orders made in lieu thereof: "1. The decision of the Refugee Review Tribunal made 22 March 2001 be set aside and the matter remitted to the Tribunal, differently constituted, for re‑determination. 2. The respondent pay the applicant's costs". 3. The respondent pay the appellant'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 W360 of 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: W360/01A Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGES: LEE, CARR & FINKELSTEIN JJ DATE: 10 JULY 2002 PLACE: PERTH REASONS FOR JUDGMENT LEE & FINKELSTEIN JJ: 1 We have had the advantage of reading the reasons of Carr J with which we agree and add the following. 2 Ordinarily, according to the common law an administrative tribunal is required to deal with the case referred to it, ascertain the relevant facts, apply those facts to the law, always deciding issues in good faith (that is without bias) after giving the applicant a full opportunity of presenting his case. The duties of the Refugee Review Tribunal ("the Tribunal") are governed by both the Migration Act 1958 (Cth) ("the Act") and the common law, but the result is the same. As to the relevant statutory provisions see: s 414 (upon a valid application being made the Tribunal must review a decision to refuse to grant or to cancel a protection visa); s 420 (the Tribunal "must act according to substantial justice and the merits of the case"); s 425 (the applicant has a right to appear "to give evidence and present argument"); s 424A (the Tribunal must give the applicant information it has obtained that is adverse to the application); s 426 (the Tribunal may call witnesses on the applicant's request). As to the effect of these provisions see: Inderjit Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 73 at [49], [50]; Minister for Immigration and Multicultural Affairs v Sarrazola [2001] FCA 263. As to the common law see for example: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82. 3 Here the Tribunal did not accede to the appellant's request to call a witness who would testify that the appellant had left Iran illegally. The Tribunal said that even if the appellant were to establish this asserted fact, it would not assist his claim because of other "problems" with his evidence. We think that in taking this view the Tribunal misunderstood its responsibilities. The appellant asserted a number of facts which he asked the Tribunal to accept. They concerned his claim that while in Iran he had suffered persecution for a Convention reason. If the appellant could persuade the Tribunal that those asserted facts were true, or even that they might be true, it is likely that the Tribunal would be satisfied (within the meaning of s 65 of the Act) that there is a real chance that the appellant would suffer similar treatment in future if he were returned to Iran. In the process of deciding whether asserted past facts were true, or might possibly be true, the Tribunal was entitled to rely upon any opinion about the creditworthiness of the appellant. If it formed the view that the appellant was not a witness of truth, in all probability it would not accept the asserted facts. In order to decide whether it was satisfied of the truth, or possible truth, of the asserted facts, one would ordinarily expect the Tribunal to look at each claim made by the appellant because, in arriving at a conclusion as to the truthfulness of certain asserted facts, the Tribunal might be assisted by knowing that other facts were true. That is to say, if the appellant was telling the truth about asserted fact A that might suggest that he was also telling the truth about asserted facts B and C. On the other hand, if it were shown that the appellant was dishonestly asserting the existence of asserted fact D, that would be taken into account when the Tribunal decided whether it should be satisfied that other asserted facts were true, or might be true. So, for example, if the Tribunal accepted the appellant's assertion that he had left Iran illegally, the Tribunal would be obliged to take that into account when considering whether it should accept as true, or as possibly true, the balance of the appellant's claims. Moreover, a finding that the appellant had left Iran illegally would also require the Tribunal to consider why the appellant had done so. There may be a variety of explanations. One explanation might be that the appellant feared for his safety. If the Tribunal formed the view that this was the reason why the appellant left Iran illegally, it would necessarily take that into account in deciding how to deal with the appellant's account of past events. Accordingly, for the Tribunal to say that it would be unassisted by the evidence of the witness whom the appellant wished to call, shows that the Tribunal had a false appreciation of its task. (See generally: Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559). 4 The appeal must be allowed and the decision of the Tribunal set aside. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee and Finkelstein. Associate: Dated: 10 July 2002 IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W360 OF 2001 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: W360/01A Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGES: LEE, CARR & FINKELSTEIN JJ DATE: 10 JULY 2002 PLACE: PERTH REASONS FOR JUDGMENT CARR J: introduction 5 This is an appeal from a decision of a Judge of the Court dismissing the application of the appellant for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the Minister to refuse to grant the appellant a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act"). the Tribunal's decision 6 The appellant, who is a citizen of Iran, claimed that he was entitled to a protection visa because he had a well-founded fear of being persecuted for reasons of his political opinion. 7 The appellant's claims, in summary, were as follows: · In mid April 2000 the appellant attended a job interview at a government owned company, having seen an employment advertisement in a newspaper. · The appellant's accounts of what took place at that employment interview varied somewhat. At his initial interview on arrival in Australia, the appellant said that he had been asked religious questions which he had answered. He was then asked what President Khamenei had said the previous week but he replied that he did not have a chance to listen to that speech. He was also asked if had attended Friday prayers the previous week and had responded that he had been unable to do so. When asked why he had not attended the prayers, the appellant claimed that he became angry and said that he did not care about government issues, but was just looking for employment. · Members of the security forces were called in. They arrested him and took him away. He became friendly with one of the guards and paid a bribe to him so that he would be able to escape while being taken to court. He escaped and hid for a while in different cities. He had heard that he had been sentenced and could be killed at any time. On hearing that news he fled Iran. · In the statement accompanying his application for a protection visa the appellant said that during the employment interview he started yelling and saying that he did not agree with the Iranian Government. He had said anti-government things which upset the interviewers. He was taken to a basement where he was beaten for three or four days and then put in a solitary cell where he was held for about ten days. He was able to get word to his family about his circumstances. They organised some money and he was able to pay the prison authority. He was allowed to escape when he was being taken to court. He then spent three or four months moving around from city to city in Iran. During this time he spoke to his brother, who told him that an order for his execution had been issued. His brother told him how he could escape from Iran. · At the interview with the respondent's delegate, the appellant was asked what questions he had been asked at his employment interview. He replied by saying that he had been asked technical questions and questions about political matters. He was asked what Ayatollah Khamenei had said in a speech and what Ayatollah Taheri had said at Friday prayers. He had responded that he had not heard the speech and had not watched the television and could not tell the interviewers what had been said during Friday prayers. The interviewers had told him that he did not care about the Supreme Leader and asked about his political opinion. He told the interviewers that he did not believe in the government, that he did not like the government and that he did not want to listen to their opinions or follow what they said. He then started to shout and swear, abusing the government and the people in it. · He was taken away by the company's security forces which were connected to the Iranian Security Forces. They put him in a back of a car and took him to the basement of a building where they beat him until he passed out. On regaining consciousness he realised that he was in solitary confinement. He made friends with one of the soldiers guarding him and through that soldier managed to inform his family of his whereabouts. His family gave the soldier money to arrange something with another soldier who was to accompany the appellant to court. The two soldiers took him to court in a car with him sitting between them. After twenty minutes the appellant told them that he wanted to go to the toilet. They stopped and took him into a mosque. When they released his hands from the handcuffs he escaped. The manner of his escape had been suggested by the soldiers. He then went into hiding in different cities in Iran for three or four months. · At the hearing, the Tribunal put to the appellant that its understanding was that during the job interview the appellant was asked about what the Supreme Leader and the Friday prayer leader had said, that he was unable to answer those questions, that he was also asked about his political opinion and then became upset starting to criticise the government. · In reply the appellant told the Tribunal that he had then been asked at the employment interview whether he was from a martyr's family. When this happened, he remembered how he had been unable to get a place at a public university because he was not from a martyr's family. The appellant claimed that he had then sworn at "the martyrs and their blood", at the Supreme Leader and at Khamenei. · A person who had been an observer at the interview stood up and said that he was a brother of a martyr and that he would pull the appellant's tongue from his throat so that he could not swear at martyrs. Two people then came and grabbed him. The observer told the appellant that even if the government spared his life he would not be safe from him. That person was armed and, so the appellant thought, was one of the company's security people. 8 The Tribunal put to the appellant that there were inconsistencies in his evidence concerning the employment interview. The appellant, in response, claimed that he was just giving a more complete answer. 9 In its reasons the Tribunal referred to what it considered to be inconsistencies in the appellant's evidence concerning the employment interview and his alleged escape from custody. 10 It expressed the opinion that it was implausible that the appellant, being aware of what was expected of him at the employment interview, and wanting to obtain a permanent job with the agency, would react by yelling and swearing at his interviewers. Also, there was nothing in the appellant's presentation during the hearing before the Tribunal to suggest that he was particularly excitable or easily angered. Over a period of two hours the appellant was able to answer questions calmly and even when the Tribunal clearly put to him its concerns regarding his credibility, he had not become visibly agitated in any way. 11 In view of those circumstances and the inconsistencies which the Tribunal perceived in the appellant's various statements the Tribunal said that it could not accept his evidence as being credible and concluded that he had fabricated his claims in an attempt to create for himself the profile of a refugee. It did not accept that the appellant was of any interest to the Iranian authorities at the time he left Iran and also did not accept that the appellant had left that country illegally. The Tribunal concluded that, having considered the evidence as a whole, it was not satisfied that the appellant faced persecution for a Convention reason in relation to obtaining employment or for any other reason. the decision of the primary judge 12 In his amended application, the appellant claimed that the Tribunal fell into jurisdictional error and error of law and, further, procedural error. Five matters were relied upon. 13 The learned primary judge noted that the Tribunal had given detailed reasons for its conclusion that the appellant's claims concerning his employment interview were implausible. His Honour said that he was unable to discern any failure to observe procedures required by the Act or the regulations to be observed, nor was there any suggestion of an error of law of the types referred to in s 476(1)(e). His Honour then considered and rejected the proposition that the Tribunal had fallen into jurisdictional error. 14 Next, the appellant had complained that the Tribunal had failed to consider the issue of why he had departed Iran illegally. For reasons which his Honour gave, he concluded that this was not correct; the Tribunal had considered the reason advanced by the appellant for his allegedly illegal departure and rejected that reason. 15 The next matter raised by the appellant at first instance was that the Tribunal erred in concluding that the appellant had no political involvement and was unlikely to have such involvement in the future. In this regard, there were two matters upon which the appellant relied. The first was discrimination against him and the second was his allegation that he had been found to be in possession of personal effects which showed sympathy to the former Shah of Iran. His Honour observed that the Tribunal had considered that there was nothing in the appellant's evidence to suggest that he had been involved in political groups in Iran in the past or that he would become involved in such groups if he returned to that country. Apart from the claim to have expressed anti-government views at the employment interview, the appellant had not claimed that he had expressed political views publicly in the past. Accordingly, the Tribunal considered that there was no evidence before it by which it could be satisfied that the appellant would express political views publicly in the future. The primary judge saw no reviewable error in the Tribunal's reasoning. He also noted that the mere fact that the appellant was not given privileges which were given to other members of the community (members of a martyr's family) did not of itself constitute a Convention ground. 16 As to the alleged seizure of personal effects including photographs and stamps of the former Shah of Iran, the Tribunal had not failed to give consideration to this matter. It had not accepted that the appellant's house had been searched and his belongings confiscated. 17 Finally the primary judge considered the appellant's complaints that the Tribunal had failed to exercise its discretion as to whether or not to allow an adjournment to enable a witness to be called at the hearing and had failed to consider a relevant consideration, namely, the reasons why the witness was not present and the prejudice that would be suffered by the appellant if the witness was not called. 18 His Honour noted that while the appellant had sent a form to the Tribunal stating that he wished to call a witness, no details were provided concerning that witness. Also the appellant's adviser had sent a form to the Tribunal indicating that the appellant did not wish to call any witnesses. 19 Apparently it emerged at the Tribunal hearing that the appellant wished to call a witness from the detention centre to give evidence that the appellant had left Iran illegally. The Tribunal had concluded that even if the appellant did leave Iran illegally, the independent evidence suggested that the most likely penalty would be a fine which was not serious enough to amount to persecution. 20 His Honour held that this exercise of discretion was open to the Tribunal and could not be impugned. the appeal 21 The ground stated in the notice of appeal were as follows: "The decision-maker involved (sic) an error of law. The applicant (sic) is raised pursuant to s 476(1)(e) of the Migration Act 1957 (sic). There was no evidence or other material to justify the making of the decision. The application is raised pursuant to s 476(1)(g) of the Migration Act 1957 (sic)." 22 At the hearing of the appeal the appellant appeared without legal representation, but was assisted by an interpreter. With one exception, none of the appellant's submissions went to any error of law or jurisdictional error. 23 The exception arose in the following manner. The appellant told us that he had, in response to an invitation from the Tribunal, filled in and sent to the Tribunal a form headed "Response To Hearing Invitation". In that document he had indicated that he wanted the Tribunal to take oral evidence from a witness named (on the second page of that document) Behroz Ramezani. In response to the question on the form "What evidence will the witness give about your application?" the appellant had written "he speak about my illegal departure". 24 In the notes taken at the time of the appellant's "arrival interview" (on 30 December 2000) Mr Ramezani's name appears as a friend who was on the boat in which the appellant arrived in Australia. 25 The appellant told us that at all material times he was at the Curtin Detention Centre near Derby in Western Australia. The Tribunal's hearing was to take place by video-link from the Derby Telecentre in Derby itself. On the day of the hearing, so the appellant informed us, Mr Ramezani was ready, and had come to the gate of the detention centre to accompany the appellant to the Tribunal hearing. The authorities at the detention centre had said that there had been no request for Mr Ramezani to accompany the appellant, so they would not let him do so. 26 It is necessary to give some detail about the Tribunal's findings and reasons. The Tribunal accepted that the appellant was an Iranian national and that his name was [deleted]. It then said that significant aspects of the appellant's evidence were implausible and internally inconsistent and that, overall, it could not accept that the appellant's evidence was credible. This had led the Tribunal to conclude, so it stated, that the appellant had fabricated his claims in an attempt to create for himself the profile of a refugee. It then referred to the appellant's account of the job interview as "inherently implausible". The Tribunal referred to what it regarded as a number of inconsistencies in the appellant's evidence about what took place at the job interview and his alleged escape. The Tribunal then said this: "In view of the inherent implausibility of the applicant's evidence concerning his behaviour during the job interview and the inconsistencies in his evidence, I do not accept that the applicant behaved in the manner he has claimed. As I do not accept that the applicant behaved in this manner, I do not accept that he was detained, that he was physically mistreated in detention, that he was threatened by the observer at the interview, that his house was searched and his belongings confiscated, that he escaped from custody or that he was in hiding. I therefore do not accept that the Iranian authorities had any interest in the applicant at the time he left Iran or that they have any interest in him currently. Moreover, there was nothing in the applicant's evidence to suggest that he was involved in political groups in Iran in the past, or that he would become involved in such groups if he returned to Iran. Apart from his claim to have expressed anti-government views at a job interview, the applicant did not claim that he expressed political views in any public way in the past. There is no evidence before me by which I could be satisfied that the applicant would do so in the future in any way that would attract the adverse attention of the Iranian authorities. In the circumstances, I cannot be satisfied that the Iranian authorities have any interest in the applicant in the reasonably foreseeable future if he returned to Iran. The applicant claims that he left Iran illegally. As I do not accept that the applicant was of any interest to the authorities at the time he left Iran, I consider that there is no reason why he could not have left Iran legally using a passport in his own name. In the circumstances, whilst I accept that the applicant left Iran through the land border into Pakistan, I cannot be satisfied that he did so illegally as he has claimed. I note that during the hearing the applicant advised that he had wanted to call a witness to give evidence in relation to his claim to have left Iran illegally. Whilst the applicant returned a form to the hearing stating that he wished to call a witness, no details were provided concerning that witness. In addition, the applicant's adviser returned a form to the Tribunal indicating that the applicant did not wish to call any witnesses. In the circumstances, no arrangements were made for the transport of a witness from the detention centre to the hearing. I have considered whether the evidence of this witness would assist me. In my view evidence from a witness that the applicant had left Iran [there is a word missing here but it must be, as counsel for the respondent submitted, "illegally"] would not overcome the problems with the applicant's evidence identified above. I have therefore decided that taking evidence from the applicant's witness would not be of assistance to me. In relation to this, I note that the applicant did not suggest that the witness would give evidence about any aspect of his claims other than that to do with his alleged illegal departure. In any event, even if the applicant did leave Iran illegally, the independent evidence before me suggests that the most likely penalty that the applicant would face for this would be a fine. In the circumstances, I do not consider that a fine imposed for breach of a law of general application is a serious enough penalty to amount to persecution in a Convention sense. Furthermore, the evidence before me indicates that if the applicant were fined, such a penalty would not be imposed for a Convention reason. In the circumstances, I cannot be satisfied that the applicant would have a well-founded fear of persecution for a Convention reason because he left Iran illegally." 27 When the Tribunal stated that the form returned by the appellant to the Tribunal did not provide any details concerning the witness, it erred. A copy of the complete form was tendered in evidence and this clearly shows the details to which I have referred above. 28 It is evident from the Tribunal's reasons, and I so infer, that had it read the second page of the form sent to it by the appellant, it would have made arrangements for the appellant's witness to be brought from the detention centre to the Derby video-link centre. 29 Its reasons disclose, in my opinion, that the Tribunal, having reached credibility findings against the appellant on other matters, sought to reconstruct what might have been the evidence given by Mr Ramezani and has stated that that evidence would not overcome the problem with the appellant's evidence which it had earlier identified. 30 In my opinion, in doing so the Tribunal so misconducted itself as to have fallen into jurisdictional error. It deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the appellant's claims in a material respect, cf W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 432 at [19], and W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCA 455. 31 The Tribunal should have heard the evidence from Mr Ramezani about the appellant's illegal departure from Iran. It should have decided whether it was going to believe that evidence or not. If it did accept that the appellant had left Iran illegally, it would have had to have considered why he would have done that. 32 The significance of the illegal departure was not simply that the most likely penalty that the appellant would face would be a fine. His illegal departure was an inherent part of the appellant's claims to have been persecuted and to have left Iran clandestinely for that reason. 33 Accordingly, for the foregoing reasons, I would allow the appeal, set aside the decision at first instance and remit the matter to a Tribunal, differently constituted, for consideration according to law. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr . Associate: Dated: 10 July 2002 The Appellant appeared in person Counsel for the Respondent: M T Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 February 2002 Date of Judgment: 10 July 2002