W221/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 399

FEDERAL COURT OF AUSTRALIA

W221/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 399 MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – whether real risk of persecution if returned to Iran – whether Tribunal failed to have regard to relevant material – whether Tribunal misinterpreted the law – whether Tribunal wrongly applied the law – whether Tribunal failed to establish a "rational basis" for determining the chance of an event occurring in the future Migration Act 1958 (Cth) ss 5, 36(2), 65, 476 W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 cited Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 applied Abebe v Commonwealth (1999)197 CLR 510 applied Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied W221/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 221 of 2001 LEE J 12 APRIL 2002 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 221 OF 2001

BETWEEN: W221/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE OF ORDER: 12 APRIL 2002

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal made 16 May 2001 be set aside and the matter remitted to the Tribunal for redetermination. 2. The respondent pay the applicant'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 221 OF 2001

BETWEEN: W221/01A

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LEE J

DATE: 12 APRIL 2002

PLACE: PERTH

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed a decision of a delegate of the respondent ("the Minister") that the applicant not be granted a "protection visa". 2 On 3 November 2000 the applicant, an Iranian national, then aged 27, entered Australia's "migration zone" by landing on Ashmore Reef in the north-west of Australia. He is a sign-writer by occupation and of Arab ethnicity. He had left Iran in late September 2000. When he entered the migration zone he did not hold a visa issued under the Act and under ss 13 and 14 of the Act, the applicant became an "unlawful non-citizen" upon entry. Pursuant to ss 189 and 196 of the Act, the applicant was placed in "immigration detention" and has been kept there ever since. The appellant does not speak English and at all times has relied upon the services of an interpreter. 3 On 24 November 2000 the applicant applied for a protection visa. Grant of the visa was refused by the delegate of the Minister on 22 December. On 29 December the applicant applied to the Tribunal for review of the Minister's decision. The Tribunal made its decision on 16 May 2001. 4 Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused. 5 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 6 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The phrase "protection obligations under the [Convention]" is not defined in the Act and is not a term used in the Convention. 7 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees". Sub-Article 1(A) of the Convention provides the following definition of "refugee": "For the purposes of the present Convention, the term 'refugee' shall apply to any person who:…(2)…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;…" Limitations upon the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub-Articles applied to the applicant. 8 As a Contracting State, Australia has accepted the obligations imposed upon it by international law by reason of accession to the treaty. Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All of those obligations could be said to come within a broad meaning of "protection obligations under the [Convention]" but, having regard to the purpose of s 36(2), the phrase as used in that subsection refers to the obligations imposed by the Convention that constitute direct, rather than indirect, obligations on a Contracting State to protect a refugee. 9 On the hearing of the application, counsel appointed under O 80 of the Federal Court Rules to represent the applicant pro bono publico made submissions on the applicant's behalf. Counsel contended that ground for review of the Tribunal's decision arose under s 476(1)(b) (absence of jurisdiction); s 476(1)(c) (absence of authority); or s 476(1)(e) (misinterpretation or misapplication of the relevant law) of the Act. 10 The applicant's fear of persecution if returned to Iran was based, in part, upon persecution he claimed he had suffered in Iran after being arrested when he attempted to leave Iran on a forged passport in 1996. The persecution was said to have been inflicted by Iranian security forces for reason of political opinion imputed to the applicant. The applicant claimed that having regard to the past events of persecution and having now left Iran illegally on a forged passport and applied for asylum, there was a real risk that he would suffer persecution for the same reason if returned to Iran. 11 When first interviewed by an immigration officer on 14 November 2000, the applicant said that he had been arrested in 1996 by the Iranian security force Etelaat which alleged that he was a member of an Arab political movement. He had been placed in isolation in a cell about "1 metre by 1 metre" and security officers had tortured him over a period of a month. He said the fact that he had now left Iran on a forged passport would cause Etelaat to suspect once again that he was a political activist and that, perhaps, he had established contacts with anti-government "people". He said that his acts would be regarded by Etelaat as "very important". 12 In the written statement provided by the Tribunal pursuant to s 430 of the Act setting out findings on material questions of fact, the evidence or material relied upon, and the reasons of the Tribunal, the Tribunal recorded the following summary of the applicant's account, commencing with his attempt to leave Iran illegally in 1996: "The applicant arranged to get a false passport. He went to the border of Turkey and Iran at Bazargan. At the border he was apprehended because the passport was forged. He said he was an Arab. In the passport there was a Syrian visa. He had wanted to go to Turkey and then to Australia. Authorities told him that he had to go to the security section. He was told there that he was a political activist working for Khalq Arab. This organisation is active against the Iranian regime. However, the applicant was not a supporter of them. The applicant was put in solitary confinement and kept for one month. Once a day for three days they took him to a room and tortured him trying to make him confess that he was involved with the Khalq Arab. They wanted to know why he wanted to leave the country. He claims that 'To leave the country with a false passport is a big issue in Iran. They made me stand in a stooped position for one hour every day. After that they would take me for interrogation blindfolded. They would sometimes give me a piece of hose and ask me what it was used for. I would say it was used to water the garden. They would tell me it had another use, namely to beat me and they would then beat me with it. After that they would keep me in a very small space where I could not move. After one month they took to the Mahku Prison. I was kept there for 17 days. I rang my family and they came and took me with them together with my prison records. They paid 400000 Tuman by way of bail for my release. They transferred my file to Ahwaz'. A month after returning to Ahwaz the applicant received notice that he had to attend the court in Ahwaz. He attended the court and was sentenced to 2 years imprisonment (supporting documentation was provided). The applicant claims he bribed an official working in the office of the Ministry of Justice by paying him 500000 Tuman. The official changed the records to show a fine of 100000 Tuman instead of the jail sentence. After this the applicant was released. … After release the applicant worked for a while at Orang Sign Writing in Ahwaz but had to leave after two years, as he could not get along with the owner. He got a job in the hospital where his father works and he worked there for about 8 months when it was discovered that he had not completed his military service. The applicant was sacked and was not able to find a job afterwards. … The applicant stated that he left Iran because he was no longer able to live in Iran. He could not remain there and face the risk of being punished for not completing military service. There are also social problems. The applicant claims he would be executed or imprisoned for life by the government of Iran. Firstly, because he did not finish military service and has been 8 years on the run. Secondly, he has a bad record arising from the attempted illegal departure in 1996. Thirdly, because he left the country illegally in September 2000. Fourthly, because he is an Arab." 13 At the Tribunal hearing, the Tribunal informed the applicant that it "could not see that…[the applicant's] arrest for illegal departure was Convention based". In its written statement the Tribunal, under the heading "FINDINGS AND REASONS", stated that "[t]he applicant's claims in relation to his first illegal departure are…not related to the Convention". The reasons of the Tribunal then continued: "His claims are again consistent with country information that indicates that persons using fraudulent documents to leave Iran are punished for such offences through laws of general application. The applicant appears to have been treated with some leniency. He was not imprisoned as the court ordered. He was able to make an arrangement (whether corruptly or not) to ensure he was not incarcerated after a conviction for leaving Iran illegally. Given the way he was treated and the short period he spent in detention on the first occasion he attempted to leave I am not satisfied that he was imputed with any political opinion as a result of his first attempt to depart Iran illegally. I note the applicant claims he was mistreated while in detention. However, even if this was the case, because he was subsequently treated with such leniency I am not satisfied that any political opinion was imputed to him as a result of his previous attempt to leave Iran. Had the authorities seriously considered that the applicant was working with Khalq Arab he would have encountered ongoing serious difficulty because of his opinion. Even if he did encounter treatment that amounted to persecution I am not satisfied that there is a real chance of any future consequences arising out of this alleagation. [sic] Further although this attempted departure occurred some years after his unauthorised leave-taking from military service it appears prosecution authorities did not notice this or, if they did notice, they took not [sic] action. This is a further indication that he was not imputed with any political opinion as a result of his departure from military service despite an accusation that he was working for Khalq Arab which he claims he did not support. The applicant was able to work at a hospital for two years despite his lack of completion certificate. Although he was eventually dismissed this is a further indication that these matters were not pursed [sic] by authorities with the vigour one would expect if a negative political opinion was imputed. This may amount to discrimination but it is not persecution in the sense of the Convention and does not give rise to a well founded fear of persecution." 14 The applicant's "claims in relation to his first illegal departure" were that he had been arrested at the Iran/Turkey border by Etelaat after presenting a forged passport. Etelaat alleged that the applicant was a political activist for the Arab movement, Khalq Arab, which accused the Iranian regime of oppressing Arabs. It was claimed in the material before the Tribunal that membership of Khalq Arab was punishable by death and the Tribunal did not find otherwise. The applicant claimed that Etelaat held him in solitary confinement for a month, in the course of which he suffered severe torture. Thereafter he was transferred to an official prison where he was held for 17 days until his family was able to be contacted and obtained his release on bail. After release, he was convicted in the Revolutionary Court of the offences of presenting a forged passport and attempting to leave Iran illegally, and his father had to sign a bond to vouch for the future conduct of the applicant and, no doubt, that he would appear before the Revolutionary Court if called upon. 15 The Tribunal accepted the foregoing account provided by the applicant. Obviously, at the time the applicant was held and tortured by Etelaat he was so treated for reason of imputed political opinion. If the reasons of the Tribunal expressed the understanding of the Tribunal that the foregoing did not constitute persecutory conduct for reason of imputed political opinion then, clearly, the Tribunal misinterpreted the relevant law and fell into error. 16 Perhaps, however, the Tribunal's reasons were intended to convey no more than the Tribunal had concluded that at the time the applicant left Iran no political opinion was then imputed to him by Iranian authorities and, therefore, he had no reason to fear harm or detriment being caused to him in the future for reason of political opinion. That conclusion was available to the Tribunal but, of course, it did not, in itself, answer the question the Tribunal had to decide, namely, whether at the time the applicant appeared before the Tribunal he held a well-founded fear of persecution. 17 At the hearing before the Tribunal the applicant said that, after leaving Iran and whilst in Malaysia, he had learned that a friend (Hamidi), who was a member of an Arab organisation in Iran, had been arrested and executed. The applicant did not mention this when interviewed on 14 November 2000. The Tribunal put to the applicant that "it was peculiar [the applicant] would not know to tell the immigration officer upon arrival if he came to Australia for protection". The applicant said he had told the "case officer" that his friend had been executed. If by the "case officer" the applicant meant the officer who conducted the second interview with the applicant after he had lodged an application for a "protection visa", then that interview was conducted on 1 December 2000 and recorded on tape. A record of that interview was included in a list of the materials the Tribunal said it had before it. No doubt, the Tribunal would have had access to the tape recording if it required it. The record of that interview was not part of the papers put before the Court. The Tribunal did not put to the applicant that he had not told the "case officer" of the execution of his friend, Hamidi. 18 The applicant told the Tribunal that he was not, and had not been, a member of an Arab organisation opposed to the regime, but he had been engaged in applying his skills as a signwriter on leaflets used by his friend Hamidi and he had helped Hamidi distribute them. 19 The applicant said that since leaving Iran he had been informed that his father had been arrested and imprisoned for the applicant's breach of the bond signed by his father. He said that his father remained in prison at the date of the Tribunal hearing on 7 March 2001. 20 On 23 March the applicant's agent sent to the Tribunal the translation of a letter received from Iran, written by a solicitor for the applicant's father. The letter confirmed that the applicant's father had been arrested and imprisoned by order of the Revolutionary Court. The letter also stated that Hamidi had been executed in September 2000 and that the applicant's father had been arrested because of the connection between the applicant and Hamidi. 21 In its reasons the Tribunal said that because it "[did] not accept" that "the applicant was involved in any political activity prior to his departure from Iran", it, therefore, "[did] not accept" that the applicant's father had been arrested because of the revelation of a connection between the applicant and Hamidi. 22 Insofar as the applicant had claimed any involvement in political activity, it was participation of a minor nature and more an infill of narrative than a new tack in the applicant's case. The Tribunal said, however, that it did not accept that even that level of activity had occurred because the applicant had not raised it in his visa application. That conclusion was open to the Tribunal although it was not a conclusion that should have been made lightly given that there may be many reasons why a person, particularly one depending on the services of an interpreter, had not presented at first, or subsequent opportunities, all material relevant to his claim as a refugee (See: W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379 at [17] - [19].) 23 However, as can be seen from the foregoing paragraphs that approach by the Tribunal did not deal with the real issue raised by the material presented by the applicant. Although the Tribunal "[did] not accept" that the arrest of the applicant's father had connection with the "political activity" of the applicant, it did not find that the applicant's father was not imprisoned by Iranian authorities for his son's default under the terms of his release on a fine and bond for the offences of presenting a forged passport and attempting to depart Iran illegally. Nor did the Tribunal find that Hamidi was not a friend of the applicant; was not a political activist; and had not been executed. Further, the Tribunal did not find the letter from the father's solicitor to be false, there being no probative material to permit such a finding. Therefore, the applicant, by that letter had put before the Tribunal material on two issues on which the author of the letter was able to speak with apparent authority, namely, that the applicant's father had been taken into custody, and remained there, in respect of his son's default under the Revolutionary Court order, and that the applicant's friend, Hamidi, had been executed on 10 September 2000. The authenticity of the letter was not in issue. Details of professional registration and telephone number were provided by the author to allow the probity of the letter to be checked. 24 In its reasons the Tribunal set out the following conclusions in respect of issues arising out of the applicant's departure from Iran using a false passport: "I am not satisfied that the applicant's second illegal departure in 2000 will cause Convention related difficulty. He may well face a penalty consistent with country information referred to above. However I am not satisfied that he will be imputed with any political opinion as a result of departing Iran illegally. The country information referred to above indicates that there is no evidence of failed refugee claimants, even those who exited illegally facing significant problems upon return to Iran. The applicant's solicitor urges me to look at the claims cumulatively. She submits that when looked at in this manner the applicant [sic] claims do give rise to a well-founded fear of persecution. I do not accept this to be the case. I have analysed the applicant's claims and even when assessed cumulatively I am not satisfied they give rise to a well-founded fear of persecution." 25 As discussed below, the foregoing reasons reveal that the Tribunal misunderstood, and did not address, the real questions raised by the applicant's case. 26 The essence of the applicant's claim that he had a well-founded fear of persecution was set out consistently in his response to questions put to him at the "arrival interview"; in his submission in support of his application for a protection visa; and in the agent's submission in support of the application to the Tribunal for review of the delegate's decision. 27 The applicant claimed that if he were returned to Iran, he was at risk of severe ill-treatment and, possibly, execution. Not as an ordinary Iranian citizen who had made an illegal departure from Iran, but as an Iranian of Arab ethnicity who was unable to obtain a passport because he was "on the run" for desertion from military service; who had been arrested previously for attempting to leave Iran on a forged passport; and who had been persecuted by the security force Etelaat for reason of imputed political opinion. Having subsequently left Iran on a forged passport, and having made an application for asylum, the applicant's case was that there was a real risk that if he were returned to Iran he would be taken into custody by Iranian security forces and treated as a suspected political activist and dealt with accordingly, thereby involving the real risk that further torture would be inflicted. 28 As the Tribunal noted, the information before it stated that citizens returning from abroad, (who may be taken to be citizens who had made authorised departures from Iran), may be subjected to search and extensive questioning in respect of their activities abroad to ascertain whether any opinion antithetical to the regime had been manifested outside Iran. Therefore, the question whether the circumstances of the applicant, described above, represented a chance that the applicant would be handed to security forces upon return to Iran had to be given very close scrutiny. The Tribunal had to take into account that the applicant had no passport and could only be returned to Iran by arrangements made with Iranian authorities, necessarily bringing him to the attention of such authorities before his return. 29 The applicant's claim was that the circumstance particular to his case, namely, that he had suffered persecution for imputed political opinion in the past, was compounded now by other events, namely, that he had already become a person of interest to security forces by being in default under an order of the Revolutionary Court in respect of the prior offences that had inspired the persecution he had suffered; that action had already been taken in respect of that default by Iranian authorities by the imprisonment of his father for his breach; and that security forces would be aware that he had left Iran at about the time his friend Hamidi, an Arab political activist, had been arrested and executed. 30 The requirements imposed on the Tribunal by the Act included the obligation to determine the chance of future occurrences after first attempting to determine what was likely to occur. As Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ said in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-576: "The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future. Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events. … It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution." 31 That instruction was reiterated in Abebe v Commonwealth (1999)197 CLR 510 by Gleeson CJ, McHugh J at [83]: "The [applicant] carried no onus of proof in relation to these matters, and the fact that she might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail. As Guo [at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal 'must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution' [Guo at 576]." 32 How did the Tribunal deal with the applicant's claims as described above? The passage extracted from the Tribunal's reasons shows that the Tribunal failed to address the case the applicant had put, as required at law. It dealt with aspects of the case, but not at all with the thrust of the case. 33 The statement by the Tribunal that it "[had] analysed the applicant's claims and even when assessed cumulatively I am not satisfied they give rise to a well-founded fear of persecution" illustrates that the Tribunal erred in carrying out the decision-making task. After establishing past events, and likely future events, the Tribunal had to take all of those matters into account as the "rational basis" for determining what chance there may be of an event or events (i.e. circumstances involving a risk of persecution) occurring in future. The Tribunal indicated that "assess[ing] [the applicant's claims] cumulatively" was incidental to, rather than the task the Tribunal had to carry out. The failure of the Tribunal to set out how it dealt with the applicant's claims "cumulatively" meant that the bare statement that it had done so would not bring the decision-making process within the requirements of the Act if the remainder of the reasons showed that the requirements of the Act had not been met. 34 A significant cause of the Tribunal's failure to deal with the applicant's case as presented is to be found in the Tribunal's misinterpretation of the relevant law by failing to understand that on the applicant's claims he had been persecuted in Iran for a Convention reason when he was tortured for imputed political opinion. The Tribunal failed to take into account the prospect that an event of persecution had occurred in the past, when it attempted to assess the chance of persecution being suffered by the applicant in future. 35 The applicant's description in the first interview on 14 November 2000, of the torture inflicted upon him, and of the reason therefor provided by Etelaat, was clear and compelling. There was no reason to reject the applicant's account and the Tribunal did not do so. That persecutory event and the subsequent events described by the applicant, were relevant to the assessment of what chance there was that, if returned to Iran, the applicant would be said by Iranian security forces to be a person holding political views contrary to the interests of the Iranian State, leading to further persecutory conduct by security forces keen to ascertain what information could be obtained from him about Arab political organisations thought to be a threat to the Iranian regime. If at the end of that course of conduct, possibly including the extensive use of torture, the security forces were satisfied that the applicant did not represent a political risk, acts of persecution would still have occurred, as the applicant feared. No analysis was undertaken by the Tribunal in that regard. Because the Tribunal did not ask the right question, failed to have regard to relevant material and proceeded under a misinterpretation of, and wrongly applied, the law, the Tribunal failed to establish a "rational basis for determining the chance of an event…occurring in the future". (See: Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 575.) It follows that ground for review has been established under ss 476(1)(b), 476(1)(c) or 476(1)(e) of the Act. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gleeson CJ at [10]; McHugh, Gummow, Hayne JJ at [76]–[85].) 36 The decision of the Tribunal must be set aside and the matter remitted to the Tribunal for redetermination. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.