FEDERAL COURT OF AUSTRALIA Nourbakhshrad v Minister for Immigration & Multicultural Affairs [2001] FCA 1248 HAMID NOURBAKSHRAD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 115 OF 2001 EMMETT J 1 AUGUST 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 115 OF 2001 BETWEEN: HAMID NOURBAKHSHRAD APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 1 AUGUST 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The respondent pay the respondent's costs. 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 W 115 OF 2001 BETWEEN: HAMID NOURBAKHSHRAD APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: EMMETT J DATE: 1 AUGUST 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 The applicant, who is a citizen of Iran, arrived in Australia on 22 December 2000. On 21 January 2001, he lodged an application for Protection (Class XA) visa with the Department of Immigration and Multicultural Affairs. On 5 February 2001, a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a protection visa and on 6 February 2001, the applicant applied to the Refugee Review Tribunal ("the Tribunal") for review of that decision. On 22 March 2001, the Tribunal affirmed the decision not to grant the protection visa. 2 On 18 April 2001 the applicant filed an application for an order of review of the decision by this Court. The grounds specified in that application did not fall within s 476(1) of the Migration Act 1958 (Cth) ("the Act"). However, on 30 July 2001 an amended application was filed on behalf of the applicant. A further amended application was filed by leave today. 3 The Tribunal in its reasons indicated that it had before it the Department's file, which included a record of an interview with the applicant by a departmental officer on his arrival in Australia, the applicant's protection visa application, written submissions in support of the application and a record of an interview of the applicant by an officer of the Department. Written submissions were also made on behalf of the applicant to the Tribunal. The applicant also gave oral evidence to the Tribunal on 15 March 2001. THE APPLICANT'S CLAIMS 4 When the applicant arrived in Australia, he was asked by a departmental officer why he left his country of nationality. He stated that his life was in danger because he had been accused by the government of being "anti-revolution". He said that he went for a job interview with a government agency called Hessa. He claimed that he was asked religious questions, which he answered. He was asked what Ayotollah Khamenei had said the previous week and claims that he said that he did not have a chance to listen to Khamenei's speech. He was also asked whether he had attended Friday prayers the previous week and said he had been unable to attend the prayers. When he was asked why he did not attend the prayers, he claims that he became angry and said that he did not care about government issues but was just looking for employment. 5 The applicant claimed that the members of the security forces were then called in and that they arrested him and took him away. He was beaten and placed in solitary confinement. He claimed that he became friendly with one of the guards and paid a bribe to the guard so that he would be able to escape when he was taken to court. He said that he escaped and hid for a while in different cities. He said that he heard that he had been sentenced and could be killed at any time. When he heard that news he fled Iran. He said that he began to plan his departure from Iran five to six days before his departure. He said that a people smuggler chose his destination. He did not care where we went, as he had to leave Iran quickly. 6 In a statement accompanying his application for protection visa, the applicant reiterated the claims made during his arrival interview. 7 In his interview with the delegate of the Minister, the delegate asked the applicant what questions he had been asked at his job interview. The applicant responded that he had been asked technical questions and questions about political matters. He said that he was asked what Ayotollah Khamenei had said in a speech and what Ayotollah Tehiri had said at Friday prayers. He said that he had responded that he had not heard the speech and had not watched the television. He said he could not tell the interviewers what had been said during Friday prayers. The applicant said that the interviewers told him that he did not care about the Supreme Leader and asked him about his political opinion. He said that he told them 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 say. 8 He claimed that he was then taken away by the security forces. He said that they put him in the back of a car and took him to the basement of a building. He said that there they beat him until he passed out. He said that when he regained consciousness he realised that he was in solitary confinement and began to start making friends with one of the soldiers guarding him. He said that through that soldier he managed to inform his family of his whereabouts. THE TRIBUNAL'S DECISION 9 At the hearing before the Tribunal, the applicant confirmed that he was claiming refugee status on the basis of the incident that occurred at the job interview. However, he added that one of the people at the interview told him that he would personally punish him for what he said. He stated that even if the government did not punish him, that person would kill him. 10 The Tribunal asked the applicant if he had to pass an ideology test before being admitted to university. The applicant responded that at the university he attended, ideology was not considered very important. The applicant claimed that public (free) universities thoroughly investigate the issue of ideology. He passed the first stage of the public university entrance examinations, but as he was not from a "matyr's family", he could not attend the second stage of the entrance tests. The applicant stated that he used to work at night when studying so he could afford the fees. 11 In its findings and reasons, the Tribunal noted the applicant's claims that, if he returned to Iran, he would be persecuted because of his reaction to questions asked of him at the interview for a government job. The reasons note the claims that the applicant would be at risk of being harmed by the government and by the person who was present at the job interview. He also claimed that the authorities searched his house and that he left Iran illegally. 12 The Tribunal accepted that the applicant is an Iranian national and that his name is Hamid Nourbakhshrad. However, the Tribunal considered that significant aspects of the applicant's evidence were implausible and internally inconsistent. The Tribunal did not accept that the applicant's evidence was credible and concluded that the applicant had fabricated his claims in an attempt to create for himself the profile of a refugee. 13 The Tribunal considered that the applicant's evidence concerning his behaviour during the job interview was inherently implausible and found inconsistencies in his evidence as a whole. As a result, the Tribunal did not accept that the applicant behaved in the manner he had claimed. Since the Tribunal did not accept that the applicant behaved in that manner, it did 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. 14 Overall the Tribunal was unable to accept the applicant's substantive claims. It did not accept that he was of any interest to the Iranian authorities at the time he left Iran or currently or that he would be of any interest to them in the reasonably foreseeable future. 15 The Tribunal was not satisfied that the applicant's failure to be admitted to a public university on the ground that he was not a member of a martyr's family amounted to persecution for a Convention reason. Nor was the Tribunal satisfied that the applicant would face persecution for a Convention reason in relation to obtaining employment. The applicant did not claim to fear persecution for any other reason and no other reasons were presented by the evidence to the Tribunal. Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees, as amended by the 1976 Protocol Relating to the Status of Refugees. The Tribunal was therefore not satisfied that the applicant satisfied the criterion set out in s 32(2) of the Act for the grant of a protection visa. GROUNDS OF REVIEW 16 In his amended application, the applicant relied on grounds that the Tribunal fell into jurisdictional error and error of law pursuant to ss 476(1)(a), (b), (c) and (e) and further, or alternatively, procedural error pursuant to s 467(1)(a). Five matters were outlined as particulars of those errors, although the last two appear to be connected to each other. I shall deal with each of the particulars separately. IMPLAUSIBILITY 17 The first particular is that the Tribunal was in error when it reached the conclusion that the evidence of the applicant's conduct at the government interview was implausible. However, the Tribunal gave detailed reasons for its conclusion. The Tribunal did not accept the applicant's claims that he was detained and physically mistreated after the incident that occurred during the job interview. The Tribunal considered that it was inherently implausible that the applicant, being aware of what was expected of him and wanting to obtain a permanent job with Hessa, would react by yelling and swearing at the interviewers, as he claimed. In particular, although this was by no means the only basis for that conclusion, the Tribunal noted that there was nothing in the applicant's presentation during the hearing to suggest that he was particularly excitable or easily angered. Even when the Tribunal put to the applicant its concerns concerning his credibility, he did not become visibly agitated in any way. 18 The Tribunal considered that a number of inconsistencies in the applicant's evidence emerged during the hearing. For example, when the delegate interviewed the applicant, he indicated that the question to which he reacted angrily concerned his political views. However, at the hearing the applicant claimed that he lost control of himself when he was asked whether he was from a martyr's family, remembered how he had been denied a university place because he was not from a martyr's family and assumed that he would not obtain the position. Another inconsistency referred to by the Tribunal concerned the role of the observer at the interview. In his application for a protection visa and during his interview with the delegate the applicant did not mention being personally threatened by one of those present at the interview or being told that if the government did not punish him, that person would do so. That was the claim, however, made in the hearing before the Tribunal. The Tribunal did not accept that the applicant was threatened by an observer who was present at the job interview. 19 The Tribunal referred to other inconsistencies in the applicant's evidence concerning his alleged escape from custody. For example, during the interview with the delegate the applicant claimed that the soldier who had agreed to assist him to escape had made arrangements for this with the other soldier. The applicant claimed that he escaped on the way to court and that the two soldiers were taking him to court at the time of his escape. However, at the hearing, the applicant stated that he did not know whether there was an arrangement between the two soldiers. He did not know if he was being taken to court at the time and he had forgotten that there was another person, in addition to the driver in the car. 20 The Tribunal thus gave detailed reasons for its conclusion that the applicant's claims concerning his government interview were implausible. I am unable to discern any failure to observe procedures required by the Act or the regulations to be observed. Nor was any suggestion of an error of law such as is referred to in s 476(1)(e) made in relation to the Tribunal's conclusion that the applicant's claims were implausible. Therefore I do not consider that s 476(1)(a) could have any application to such a particular; nor could s 476(1)(e). 21 Reliance was also placed on s 476(1)(b) and s 476(1)(c), namely, that the person who purported to make the decision did not have jurisdiction to make it and that the decision was not authorised by the Act or the regulations. Those paragraphs must be considered in the light of the observations of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ("Yusuf's case"). 22 The various provisions of s 476 enumerate the grounds on which judicial review of Tribunal decisions may be sought. The section does so in a way that, at least at first sight, allows more limited grounds than the grounds on which judicial review may ordinarily be sought. In Yusuf's case, the High Court held that, even though s 476(1)(a) is inapplicable, it does not follow that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the Tribunal failed to make some relevant finding of fact. A complaint of that kind may amount to a complaint of error of law – see Yusuf's case at paragraphs [76]-[78]. 23 In Yusuf's case, the Minister argued that paragraph (b) extends only to matters in which the Tribunal or the person who constituted the Tribunal was not properly authorised to make the decision because, for example, the Tribunal was not constituted in a proper way. However, the Court held that, if an administrative tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material, relies on irrelevant material, or at least, in some circumstances, makes an erroneous finding or reaches a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it – see Yusuf's caseat paragraph [82]. 24 There is nothing in the Act to suggest that the Tribunal is given authority to determine authoritatively questions of law or to make decisions otherwise than in accordance with the law. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply the law correctly to the facts it found. In those circumstances a s 476(1)(e) ground may be made out – see generally paragraphs [76] to [84] of Yusuf's case. However, it is also clear that making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind to which s 476(1)(e) relates – see paragraph [84] of Yusuf's case. Following that reasoning, I do not consider that paragraph (e) has any application in the present case. 25 Further, I do not consider that paragraphs (b) or (c) of s 476(1) have any application. The Tribunal did not identify a wrong issue by considering the credibility of the applicant in relation to his claims concerning a job interview. The question that it was considering was whether or not the applicant had a well-founded fear of persecution for a Convention reason. That was the correct question to ask in a proceeding of this nature. There is no basis for contending that the Tribunal ignored relevant material or relied on irrelevant material in the way in which it dealt with the inconsistencies that it perceived in the applicant's claims. While, in some circumstances, making an erroneous finding or reaching a mistaken conclusion might involve paragraphs (b) or (c), there is nothing in the reasoning of the Tribunal which, in my view, attracts such a characterisation. The Tribunal made a judgment on material before it. That judgment was open to it on that material. It has given adequate reasons for reaching that conclusion. I do not consider that the first particular of the first ground of appeal has been established. REASONS FOR APPLICANT'S DEPARTURE 26 The second ground is that there was error by the Tribunal when it failed to consider the issue of why the applicant departed Iran illegally. The argument was that the Tribunal considered the possibility of illegal departure solely on the basis of the likely penalty that would be imposed on the applicant if he returned to Iran. It concluded that, even if the applicant left Iran illegally, the most likely penalty he would face would be a fine. However it failed to take into account, so it was said, a relevant consideration, namely, that if the applicant did leave Iran illegally, that would be evidence that he was escaping from the Iranian authorities and that that would be relevant to the issue whether he had a well-founded fear of persecution. 27 For the reasons which it gave, the Tribunal did 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. The applicant claimed that he left Iran illegally. However, because the Tribunal did not accept that the applicant was of any interest to the authorities at the time he left Iran, the Tribunal considered that there was no reason why he could not have left Iran legally, using a passport in his own name. In the circumstances, while the Tribunal accepted that the applicant left Iran through the land border into Pakistan, it was not satisfied that he did so illegally, as he had claimed. Thus, it is not correct, in my view, to say that the Tribunal did not consider the issue of why the applicant departed Iran. It considered the reason advanced by the applicant for his alleged illegal departure and rejected that reason. I do not consider this particular of the grounds of review is made out. LIKELIHOOD OF POLITICAL INVOLVEMENT 28 Third, it was argued on behalf of the applicant that the Tribunal erred when it concluded that the applicant had no political involvement, and was unlikely to have such involvement in the future. In support of this particular, the applicant relied on two matters: first, the discrimination against the applicant and second, the allegation that the applicant was in possession of personal effects that showed sympathy to the former Shah of Iran. 29 The Tribunal considered that there was nothing in the applicant'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 Iran. Apart from his claim to have expressed anti-government views at a job interview, the applicant did not claim that he had expressed political views publicly in the past. The Tribunal considered that there was no evidence before it by which it could be satisfied that the applicant would do so in the future. 30 The Tribunal accepted that the applicant had been discriminated against in his attempt to gain entry into a public university in Iran because he was not a member of a martyr's family. The Tribunal considered that the applicant's evidence in that regard was consistent with independent evidence before it. However, the Tribunal noted that the applicant was accepted into a semi-private or free university and has a university degree. The Tribunal accepted that the applicant felt that he was discriminated against in that regard. However, the Tribunal was not satisfied that the treatment to which the applicant was subjected in not obtaining a place at a public university was serious enough to amount to persecution for a Convention reason. 31 In any event, it is difficult to see which of the Convention reasons would have been the justification for such persecution. Not being a member of a martyr's family is not of itself obviously a Convention reason. It may be, for example, that it would be possible to show that the applicant's family had not participated in the war that gave rise to martyrdom and that it declined to do so because of political views. However, there was no suggestion to that effect in the claims made by the applicant. The mere fact that he was not given privileges that were given to other members of the community does not of itself constitute a Convention ground, except possibly the argument that it was sufficient to constitute the applicant as a member of a particular social group. However, no submissions to that effect were advanced and there was no evidence that that was how a non-martyr's family were treated in Iran. There was certainly no finding by the Tribunal to that effect. 32 The applicant also referred to evidence given by him that the authorities searched his home and seized personal effects, including photographs and stamps of the former Shah of Iran. It was said that the Tribunal failed to take into account the relevant consideration of his being in possession of those effects in determining whether or not he had political involvement or was likely to have involvement in the future. However, the Tribunal did not accept that the applicant's house was searched and his belongings confiscated. It is not a failure to give consideration to a relevant matter in circumstances where there was a finding of fact that that matter did not exist. I do not consider that this third ground is established. FAILURE TO CALL WITNESS 33 The final two grounds may be considered together. They are as follows. The Tribunal fell into error when it: · failed to exercise its discretion as to whether or not to allow an adjournment to enable a witness to be called at the hearing before the Tribunal; · failed to consider a relevant consideration being the reasons why the witness was not present and the prejudice that would be suffered by the applicant if the witness was not called. I am not entirely clear as to the extent to which these final particulars were pressed. However, I shall deal with them, since they were the subject of written submissions. 34 During the hearing the applicant informed the Tribunal that he had wanted to call a witness to give evidence in relation to his claim to have left Iran illegally. While the applicant had returned a form to the Tribunal 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 place of the hearing before the Tribunal. 35 The Tribunal concluded that evidence from a witness that the applicant had left Iran illegally would not overcome the problems with the applicant's evidence that were identified by the Tribunal. Therefore, the Tribunal decided that taking evidence from the proposed witness would not be of assistance to it. The applicant did not suggest that the witness would have given evidence about any aspect of his claims other than those to do with his alleged illegal departure. As I have said, the Tribunal concluded that, even if the applicant did leave Iran illegally, the independent evidence suggested that the most likely penalty that the applicant would face would be a fine. The Tribunal considered, first, that a fine would be an imposition by a of law of general application, and second, in any case, the imposition of a fine in this case would not be a serious enough penalty to amount to persecution for a Convention reason. 36 It was initially suggested that particulars four and five gave rise to the ground contained in s 476(1)(a), namely, that procedures that were required by the Act or the regulations to be observed in connection with the making of the decision were not observed. However, counsel for the applicant accepted the difficulty of making out such a claim in the light of s 426(3) of the Act. Section 425A(1) provides: "If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear." Section 426, however, provides: "(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." 37 The terms of that section seem to me to indicate that there can be no legitimate complaint concerning the way in which the Tribunal dealt with the applicant's request to call a further witness. It is clear that the Tribunal had regard to the applicant's wishes. It considered them and gave reasons for not acceding to those wishes. It is clear under s 426(3) that the Tribunal has a discretion to decline to call a witness. The Tribunal formed the view that the witness would not have made any difference to the conclusion that it reached. 38 The Tribunal rejected the primary claims of the applicant, namely, that he would be persecuted because of the incident at the job interview because it regarded those claims as implausible. It therefore did not matter whether the applicant had left illegally or otherwise. The Tribunal concluded that the applicant was of no interest to the Iranian authorities then, or at any time in the reasonably foreseeable future. The exercise of discretion was one open to the Tribunal and it is not, therefore, one that can be impugned. CONCLUSION 39 I do not consider that these particulars of the grounds for review are established. It follows, in my opinion, the application should be dismissed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 4 September 2001 Counsel for the Applicant: Mr R A C Cullen appeared pro bono Counsel for the Respondent: Mr M Ritter Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 August 2001 Date of Judgment: 1 August 2001