FEDERAL COURT OF AUSTRALIA W171/01A v Minister for Immigration & Multicultural Affairs [2001] FCA 1753 Migration Act 1958 (Cth) ss 476(1)(a), 476(1)(e), 476(1)(g), 476(3)(f) Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 230 cited Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 cited Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 cited Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited W171/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 171 of 2001 RD NICHOLSON J 12 DECEMBER 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 171 of 2001 BETWEEN: W171/01A APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 12 DECEMBER 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application. 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 171 of 2001 BETWEEN: W171/01A APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 12 DECEMBER 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 30 April 2001 whereby the Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa (class XA). The application for review has the effect of invoking such jurisdiction as the Court has pursuant to s 476(1) of the Migration Act 1958 (Cth) ("the Act"). 2 The applicant is a citizen of Iran. He arrived in Australia in December 2000. He lodged his application for a protection visa on 21 January 2001. The delegate's refusal occurred on 12 February 2001. Relevant provisions 3 Under s 36(2) of the Act a non- citizen in Australia is eligible for a protection visa if that person is someone: "… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. The same criterion appears in Sch 2 of the Migration Regulations in which item 785 and 866 both include the same criterion. 4 Article 1a(2) of the Convention defines a "refugee" to be any person who: "…owing to a 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 as a result of such events, is unable or, owing to such fear, is unwilling to return to it". 5 The reasons specified in Article 1a(2) are known as Convention reasons. The existence of such reasons threatening the life or freedom of a refugee in a territory to which it is proposed he or she be expelled or returned gives rise to a protection obligation prohibiting such expulsion or return as a consequence of Article 33 of the Convention. Tribunal's findings 6 The claim which the applicant made and which was considered by the Tribunal was that if he returned to Iran he would be persecuted for reasons of his political opinion. 7 In that respect the Tribunal first considered evidence which the applicant gave concerning an incident in February 2000. It was to the effect that on that date he had campaigned for a reformist candidate; he and several companions pulled down posters of other candidates; he was detained and then released after 24 hours. He gave an undertaking to the law enforcement authorities that he would not engage in illegal campaigning activities. The Tribunal found that this fell well short of being able to be characterised as persecution because what was involved was an illegal activity. 8 Following that incident the applicant travelled on an Iranian passport in his own name to Turkey, returning to Iran. The Tribunal found that was further evidence that he was not of any ongoing interest to the Iranian authorities because of his brief detention in connection with the February incident. 9 On the hearing of the appeal the applicant said he did not rely on the February incident to establish the persecutory conduct in relation to which he claimed to hold a well-founded fear. Rather, the applicant said his claim was that his fears of persecution derived from events in May/June 2000. Those events arose in connection with a second round of the elections held then. He was campaigning for his preferred candidates. He claimed he and some companions went out with the intention of pulling down other candidate's posters. They threw paraffin on and then set fire to a large poster of the other candidate which was positioned in the middle of a town square. However, the post on which it was positioned also contained pictures of Ayatollahs Khomeini and Khamenei, which were burnt in the process. The applicant claimed he was able to escape though some of his friends were arrested by security forces. 10 The Tribunal found the applicant's account of this incident to be problematic. It did so for five reasons. Firstly, the applicant's account differed from that given to the delegate in that the applicant denied later that he had told the delegate he had gone to the square to put up a poster rather than to take down the other candidate's poster. Secondly, he denied he also told the delegate the fire had spread to the grass in the square. Thirdly, the applicant successfully avoided arrest on the second occasion, although the number of his friends present was greater than in February. Fourthly, the failure of officers to prevent him escaping after he was knocked down. Fifthly, he was able to stay with a cousin in Tehran without being discovered by security forces. 11 The Tribunal accepted that taken individually the problems with the applicant's evidence were not especially significant. However, it held that when taken together they undermined the credibility of the applicant's account. 12 It is unnecessary to examine in greater detail this aspect of the Tribunal's reasoning. That is because the Tribunal subsequently in its reasons examined what the position would be if, contrary to its finding, the applicant had been involved with setting fire to a poster of an electoral candidate and had become of interest to the authorities for that reason. In those circumstances the Tribunal concluded it would not be satisfied that this would give rise to a well-founded fear of persecution for a Convention reason. The Tribunal therefore did remind itself that where an adverse finding in relation to a material claim is made, but the Tribunal is unable to make that finding with confidence, it should proceed to assess the claim on the basis that it could possibly be true: see Minister for Immigration & Multicultural Affairs v Rajalingham (1999) 93 FCR 230 per Kenny J at 146. 13 The applicant claimed that in setting fire to the poster he had been giving expression to his political opinion against the Iranian regime. The Tribunal did not accept the applicant's claim in this regard. It considered that in campaigning for a reformist candidate in the elections the applicant was certainly expressing a political opinion in favour of political reform. The difficulty which he had in connection with pulling down posters was because that activity was illegal. It found that a law which penalises election campaigners who pull down posters of candidates is not in itself unreasonable and that there was nothing in such a law which itself infringed on the free expression of political opinion. It did not accept that the applicant was of any interest to the Iranian authorities because of his pro-reformist political opinion. Further, it did not accept he was detained for that reason. The Tribunal was of the view that if the applicant was involved in setting fire to a poster of another candidate, the authorities would see it in the same terms as his previous behaviour namely, as an illegal election campaign tactic and not as a statement against the regime. Once accepted that the evidence supported the finding that the security forces' interest in the applicant was motivated by a wish to enforce the criminal law against him, the conclusion was open that their subsequent efforts to locate him and arrest him was not to be regarded as persecutory nor that the prospective punishment to be meted out in accordance with Islamic law would be done for a Convention reason. 14 There was no independent evidence before the Tribunal to suggest the applicant would face any more serious punishment in relation to that breach of the law because the poster burned by the applicant contained photographs of the Ayatollahs. In these circumstances the Tribunal concluded it was of the view that any punishment faced by the applicant would amount to prosecution for breach of a law of general application and not persecution for a Convention reason. 15 There are other matters of a lesser nature the subject of findings by the Tribunal. There were documents which the applicant provided to support his case which were found by the Tribunal not to assist him. It is unnecessary to further examine those. 16 The Tribunal considered it unlikely the applicant left Iran illegally, but if he did so the independent evidence did not suggest that it would bring the applicant within the definition of a refugee. 17 In relation to what the Tribunal described as a "new claim" arising out of the drowning of an Iranian prior to the applicant's arrival in Australia, the Tribunal did not accept that this would give rise to a well-founded fear of persecution by the applicant for a Convention reason were he to be returned home. 18 In relation to an obscene poem alleged to have been found in his house when searched, the Tribunal did not accept the claim. This was because the applicant had not mentioned it in interviews. He said this had occurred because he was embarrassed to mention the nature of the poem before female interviewers. He was, however, on notice as to the importance to reveal all information. 19 The Tribunal concluded therefore that the chance that the applicant would face persecution for a Convention reason in Iran was remote and insubstantial. It was therefore not satisfied he had a well-founded fear of persecution for a Convention reason. Grounds of review 20 Doubtless in recitation of a commonly used form, the applicant relied on three formal grounds in his application. The first was in relation to non-observance of procedures and that is to be taken to be seeking to invoke s 476(1)(a) of the Act. No submissions or arguments were apparent to support that ground so it receives no further consideration. 21 The second was an invocation of s 476(1)(e) of the Act alleging an error of law being an error of law involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. No argument was directed and no basis was made apparent for any contention that there was any incorrect interpretation of the applicable law so nothing further is here addressed to that aspect. 22 Finally, reliance was placed on the ground in s 476(1)(g) to be read with s 476(4) that there was no evidence or other material to justify the making of the decision. No submissions were brought in support of that ground and it was apparent that there was material which did justify the Tribunal making its decision. Nothing further will therefore be said on that ground. Applicant's submissions 23 The applicant was unrepresented, an order under O 80 seeking representation for him having failed to do so. He was not therefore a person who could formulate his case with the requirements of s 476 of the Act in mind. It was therefore not surprising that the matters he raised were directed to issues of fact and alleged mistakes said to have been made by the Tribunal. He said the Tribunal was mistaken in the issue of what he had said about putting up posters and in relation to the fire on the lawn. He emphasised that the importance of the burning of a photograph of the Ayatollahs in the Iranian system and that it should have led to a finding of persecution. Likewise, he said that the drowning of the fellow Iranian should have been the subject of a similar finding. 24 Additionally, the applicant said that he had found the Tribunal member to be stubborn, formal, superficial and unjust. In his view she had not paid any attention to what he had said but considered everything from her point of view. His case was one of 15 determined by her in relation to Iranians, none of which had succeeded. 25 Finally, he concluded by saying that he was a young man without money and surely he had the right to live without fear of persecution. Respondent's submissions 26 The Court had the benefit of written and oral submissions on behalf of the respondent. Their effect is reflected in the reasoning of the Court. Reasoning on principal submissions 27 The function of this Court is to review the decision of the Tribunal for any error of law lying within the jurisdiction of the Court pursuant to s 476(1) of the Act. It is not within the function of this Court to review the merits of what was decided by the Tribunal. That is, it is not open to this Court to re-make the findings of fact made by the Tribunal. Accordingly, any submissions of the applicant which are directed to issues of fact and to alleged mistakes made by the Tribunal in findings of fact cannot assist him in invoking the review jurisdiction of the Court. It is not an error of law for a wrong finding of fact to be made. 28 The equivocation of the Tribunal in relation to its first basis of deciding – that is, that together the implausible aspects of the applicant's account undermined his credibility, do not merit further examination. This is because the Tribunal assumed the contrary position as an alternative argument and found that even if it did believe the applicant in the relevant respects it would not be satisfied this would give rise to a well-founded fear of persecution for a Convention reason. In my opinion there was evidence which entitled the Tribunal to arrive at that alternative conclusion. In relation to any punishment which the applicant might receive for breach of the general law, there was no evidence to show that such punishment would be disproportionate or that the law of general application would be applied for a discriminatory purpose. 29 There is no apparent error of law in the application of the law to the facts as found in connection with the drowning of another Iranian or the discovery of the allegedly obscene poem. 30 In relation to the applicant's complaints concerning the Tribunal member, it is not open to the Court to review a decision of a Tribunal on the ground that it was made for an improper purpose being a purpose of bad faith: s 476(3)(f). What is available to the Court is to review a decision on the grounds of actual bias: s 476(1)(f). This involves the party asserting the ground to bring clear and convincing proof that the decision maker had a pre-existing state of mind disabling him or her from undertaking or, rendering him or her unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made. There is no evidence which would support the existence of such actual bias. Furthermore, the nature of the Tribunal's reasons shows that the Tribunal examined the matter from alternative perspectives and cautioned itself as to how it should proceed. The applicant's concerns about the Tribunal member do not give rise to an error of law within that concept. 31 The applicant's concluding point concerning his desire to live without fear is, regrettably, one which cannot assist him in a court of law. Reasoning on supplementary submissions 32 Following the hearing the applicant, with leave of the Court, filed supplementary submissions prepared with the assistance of consultants. The first point which he made in these was in relation to the issue of the findings concerning his credibility and the evidentiary burden which he said the Tribunal had imposed on him to arrive at those adverse credibility findings. His express concern was that the Tribunal had been unduly sceptical of his testimony. He submitted that he had made an honest account of his experiences in Iran and that his account was consistent with objective country information so that he ought to have been given the benefit of the doubt for his claims. This approach was one which he said had been recognised in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 at 575 per Gaudron J and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status under the Convention at par 196. In particular he stressed that because of the circumstances of a refugee applicant, the lack of absolute documentary evidence of persecution does not preclude a finding in the applicant's favour. 33 However, as the respondent's submissions point out, it is not an error of law within the grounds of review set out in s 476 of the Act that the conclusions of fact drawn by a tribunal are unreasonable or may be seen to be unreasonable to another, or that other minds would not have reached the same conclusion: Brakni v Minister for Immigration & Multicultural Affairs [2001] FCA 48 at par 10 per Spender J with whom Carr and Tamberlin JJ concurred. This follows from the proposition that the merits are for the Tribunal to determine, not for the Federal Court: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629 par 54. Here, in any event, it cannot be said that the conclusions of fact drawn by the Tribunal are unreasonable given that there was evidence on which they could be based. As disappointing as it may be to the applicant that the Tribunal has not accepted his evidence which he claims to have given honestly as an expression of a well-founded fear of persecution, this does not provide any basis on which this Court can interfere with the findings of the Tribunal. 34 The second matter raised by the applicant in the supplementary submissions attacked the conclusion of the Tribunal that he was punished in accordance with the law "of general application". He submits that there is evidence of arbitrary exercise of legal and judicial power in Iran so that such power is routinely exercised to suppress reformists while the technically "illegal" behaviour of hardliners and security forces is overlooked by law enforcement agencies. His submission is that even though he may have been arrested and charged pursuant to a law of general application, those steps were the product of action taken against him because of his political opinion as a reformer. Specifically, he says that the conclusion of the Tribunal that the judgment against him on 12 January 2001 was of a "civil kind" should correctly have been seen in the context of the political situation of the Islamic Republic of Iran and the features previously referred to in relation to the legal and judicial power. 35 However, as the submissions for the respondent point out, whether or not the Tribunal was correct in concluding that the document in this respect was unrelated to any incident that may have taken place in May/June 2000, the notification did not indicate nor did any other evidence before the Tribunal say that the applicant would be punished in a manner disproportionate to the offence he claimed he had committed. The document merely required that "the plaintiff" must attend or be dealt with "according to the regulations" and there is no evidence to show what the regulations stated. 36 Thirdly in the supplementary submissions the applicant returns to the circumstances of his illegal departure from Iran, submitting that the circumstances of his departure would exacerbate the scrutiny he would face upon his return to Iran. 37 The position was that the Tribunal considered it unlikely that the applicant had left Iran illegally. Nevertheless, it concluded that if he had done so the independent evidence did not suggest to it that such departure would bring into play penalties amounting to "persecution of the applicant". It referred to DFAT information of March 1996 that if the illegal exit was prompted by a wish to evade justice then the individual may have to face penalties, or the original offence as well as fines, but that these penalties would not amount to persecution in the Convention sense. This finding of the Tribunal is one which the applicant seeks to review on the merits and that lies beyond the jurisdiction of this Court. 38 In my opinion, while I respect the fervency with which the applicant maintains that he has given an honest account of his well-founded fear of persecution based on his political opinion, that does not provide any permissible additional ground entitling this Court to interfere with the findings of the Tribunal. Conclusion 39 For these reasons I consider that the application for review must 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 RD Nicholson. Associate: Dated: 12 December 2001 Counsel for the Applicant: Applicant represented himself Counsel for the Respondent: Mr R Lindsay Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 November 2001 Date of supplementary submissions: 5 December 2001 Date of Judgment: 12 December 2001