Rangin, Saeed v Minister for Immigration & Multicultural Affairs [1998] FCA 369

FEDERAL COURT OF AUSTRALIA

MIGRATION - Refugee status - misapprehension of facts by Refugee Review Tribunal - misapprehension that applicant had remained in his country of nationality for a substantially longer period than he in fact had - decision-maker having based decision on a fact that did not exist, namely, departure for Australia on a much later date.

Migration Act 1958 (Cth) ss 476(1)(g), (4) SAEED RANGIN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NG 1106 of 1997 LINDGREN J SYDNEY 7 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1106 of 1997

BETWEEN: Saeed Rangin

Applicant

AND: Minister for Immigration and Multicultural Affairs

Respondent

JUDGE: LINDGREN j

DATE OF ORDER: 7 APRIL 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal dated 2 December 1997 in matter N97/14204 be set aside. 2. The matter be remitted to the Tribunal to be dealt with in accordance with law. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 1106 of 1997

BETWEEN: Saeed Rangin

Applicant

AND: Minister for Immigration and Multicultural Affairs

Respondent

JUDGE: LINDGREN J

DATE: 7 APRIL 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore) INTRODUCTION The applicant applies for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 2 December 1997. The Tribunal found that the applicant was not a refugee and affirmed a decision of a delegate of the Minister not to grant him a protection visa. BACKGROUND FACTS The applicant is an Iranian national who left Iran on 30 April 1994 and arrived in Australia on 2 May 1994 on an Iranian passport and a two month visa. He came to Australia as one of a group of Iranian table tennis players to compete here. Apparently, although this is not relevant to any issue that I have to decide, due to an administrative error the team arrived after the tournament had commenced and the team did not play. Rather, they took the opportunity to visit places in Australia. In about mid June 1994, the applicant had a telephone call from his father in Iran warning him that the authorities in Iran were looking for him and that it was not safe for him to return home. This caused him to reflect on anything which he may have done which would cause the Iranian authorities to be interested in him. I refer below to the conclusion which he reached. In any event he decided to remain in Australia. He told his fellow players nothing and simply "disappeared". On 3 April 1995, the applicant signed an application for a Protection Visa on the basis that he was a refugee. The application was lodged on 4 April 1995. A delegate of the Minister rejected the application on 27 February 1997. On 11 March 1997, the applicant applied to the Tribunal for review of that decision. As noted earlier, on 2 December the Tribunal gave its decision which is the subject of the present application for an order of review. THE APPLICANT'S CASE AND THE REASONING OF THE TRIBUNAL The Tribunal's reasons for decision commence by setting out the relevant law, and, in particular, the test to be satisfied if a person is to be accepted as a refugee. The relevant definition of a refugee is, of course, that expressed in the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1968 Protocol ("the Convention"). Australia has protection obligations under the Convention to a 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." In the present case, as will appear, the applicant's claim is that he feared and fears being persecuted for reason of political opinion which the authorities, he believes, understand him to hold. The facts on which the applicant bases his claim are set out in the Tribunal's Reasons for Decision. In outline, they are as follows. During the applicant's national service as a conscript in the Iranian Air Force, he was forced to become involved in the supply of goods to opponents of the Iranian Government and he believes that his involvement, albeit unwilling on his part, has been discovered, and that he will be imprisoned, or even executed, if he returns to Iran. In short, his case is that he was a driver for a senior officer. On a particular occasion, that officer, the applicant and another conscript, drove with a load of goods to a country installation of the Iranian Air Force. After making a delivery there, the applicant was directed by the officer to drive the vehicle to another town where some further goods, in the form of petrol and bullets, were delivered to Kurdish opponents of the Government. The applicant says that he became aware of this only during the course of the operation and came to believe that his superior officer was, in fact, an opponent of the Iranian Government. When the superior officer and the two conscripts returned to Tehran, there was paperwork to be completed. The paperwork stated that all the goods had been delivered to the Air Force facility. The applicant objected to signing but pressure was brought to bear upon him by the superior officer and he signed. He had no further problems during his military service and he was discharged about six months later. As I said earlier, in Australia the applicant was telephoned by his father from Iran. His father told him that he, the father, had been taken in for questioning and that the authorities had been inquiring about the applicant's whereabouts. The applicant assumes that the inquiries relate to the incident described above. The Tribunal's Reasons for Decision record that the Member asked the applicant how anyone would know of the shipment, having regard to the fact that the paperwork had recorded the total consignment as having been delivered to the correct consignee. The Member suggested that it was unlikely that the superior officer or the other conscript would have informed the authorities. The applicant responded that once a year there is a "reconciliation of the paperwork" and that this would have disclosed that the shipment did not, in fact, reach the unit for which it was intended. There follows at this stage of the Tribunal's Reasons for Decision an important passage: "The Tribunal noted that it was more than a year between the shipment and the Applicant's departure for Australia. Surely, if he knew such an annual reconciliation was to take place, he would know that his role would be discovered, and that he would be at risk. Why then had he not left Iran before the reconciliation? The Tribunal notes that such a reconciliartion would arouse suspicions of theft or subversion, and that either would be punishable. The Applicant responded that he thought SSSS [the superior officer] may be at risk, but not himself. Although he had signed as the driver, he thought there may be a way of proving that SSSS was the one at fault. He though [sic - thought] that SSSS would tell the authorities that he, SSSS, had organised the shipment. The Applicant believed that, as he had been discharged from the armed forces, then no further action could be taken against him." (emphasis supplied) The Reasons for Decision conclude as follows: "The Tribunal found the applicant's evidence unconvincing. The Tribunal notes that the Applicant claims he remained in Iran despite knowing that an annual reconciliation would take place, at which it would be discovered that he had been involved in the disappearance of military goods. The Tribunal notes that the Applicant did not claim that he had made any attempt to leave Iran earlier. The Tribunal is not persuaded by the Applicant's explanation for this decision. The Tribunal is not satisfied that the Applicant was involved in nay [sic - any] such shipment. The Tribunal is not satisfied, on the evidence available, that there is a real chance that the Applicant would suffer persecution for reasons of his political opinion, or a political opinion imputed to him. The Tribunal is not satisfied that any fear of such persecution that the Applicant has is well-founded." (emphasis supplied) REASONING OF THE PRESENT APPLICATION The problem which has arisen is this: at an early stage the Reasons for Decision record that the applicant arrived in Australia in "1995", whereas, in fact, he arrived on 2 May 1994. Of course, such an error in itself might be immaterial. Indeed, if one were to refer to nothing more than the year 1995, one might think that it was a clerical error, and that the Tribunal had had in mind, throughout, the date 2 May 1994. However, the position is not so simple. I should record that there is evidence before the Court that the applicant was assigned to travel for 10 days from 21 May 1993 to 31 May 1993 for driving and transporting food, fuel and inflammable goods in Iran. Elsewhere the applicant has dated the trip June 1993. Accordingly, the timing of the trip is late May or June 1993 and I shall use the expression "late May/June" for convenience. The Reasons for Decision record that the applicant was discharged from the Armed Forces six months later, that is, in late November/December 1993. We know that in fact he left Iran for Australia on 30 April 1994, arriving here on 2 May. Although the Tribunal Member does not refer to the date in 1995 when he understood the applicant to have arrived in Australia, it may have been 2 May 1995 (rather than 2 May 1994). On the other hand, it may have been earlier or later in 1995. What is important is that the Member had the impression that the period from the trip (late May/June 1993) to the applicant's departure for Australia was a period within the range 20-31 months (according to which month from January to December 1995 one takes as the end point). Similarly, the Member had the impression that the period from the applicant's discharge from the Armed Forces to his departure for Australia was a period from late November/December 1993 to some unidentified date in 1995, a period within the range of 14-25 months. Both periods substantially exceeded their actual counterparts. The error affected the Member's reasoning in two important respects. First, it will be recalled that he assumed that the "annual reconciliation" would have taken place before the applicant left Iran. That would have been the case if he had left Iran after late May/June 1994 as the Member assumed he did. But the applicant left Iran on 30 April. Therefore, consistently with the applicant's case, he would have left before the annual reconciliation took place, if it took place between that date and late May/June 1994. Second, the Member thought that the applicant had "remained in Iran, despite knowing that an annual reconciliation would take place". If the time of the applicant's discharge from the Armed Forces is taken as the starting point (he could not reasonably be expected to have departed Iran earlier), the Member understood that he had remained in the country for 14-25 months, whereas, in truth, he had remained there for only some 5 months. It is put for the respondent that when the applicant was questioned by the Member, he did not explain that there was in fact only a relatively short period from the conclusion of his conscription to his departure for Australia, or that the reconciliation of the paperwork might, consistently with his version of the facts, have taken place after he left Iran. This is correct, but two things must be noted. The first is that the applicant is not very familiar with the English language, although I note that while he has been assisted by an interpreter before me he has also been able to speak in English, if not very well. The second and more important point, however, is that the applicant and the Member were simply at cross purposes. At least, so far as I can tell from the reference to the year 1995 in the Reasons for Decision, the Member would have regarded the applicant as understanding his questions in the context of a departure for Australia at some time in 1995, whereas the applicant would have regarded the Member as asking questions in the context of an understood departure for Australia on 30 April 1994. It is because of the importance which the Reasons for Decision place on the dates and periods concerned that the factual misunderstanding is revealed to be at the heart of the Tribunal's decision in this case. The next question to arise is what effect, if any, this factual error should have. Section 476(1) of the Migration Act 1958 sets out the grounds for review of a decision of the Tribunal, relevantly, as follows: " ... application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: ... (g) that there was no evidence or other material to justify the making of the decision." Section 476(4) of the same Act provides: "The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:- (a) ..... (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." In my opinion the Member of the Tribunal who made the decision in this case based that decision on the existence of a particular fact which did not exist, namely, the arrival of the applicant in Australia in 1995. Again, I emphasise, that the factual misunderstanding is not peripheral, but lies at the heart of the Tribunal's reasoning. CONCLUSION It seems to me that the ground of review is made out and that the appropriate course is that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal to be dealt with in accordance with law. Accordingly, the orders of the Court are that: 1. The decision of the Refugee Review Tribunal dated 2 December 1997 in matter N97/14204 be set aside. 2. The matter be remitted to the Tribunal to be dealt with in accordance with law. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren