FEDERAL COURT OF AUSTRALIA WAGB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1247 MIGRATION – judicial review – Refugee Review Tribunal – alleged actual bias – alleged failure to have regard to medical evidence – alleged failure to consider sur place claim – no reviewable ground – application dismissed. Migration Act 1958 (Cth) s 474 Judiciary Act 1903 (Cth) s 39B NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 cited WAGB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W105 OF 2002 FRENCH J 9 OCTOBER 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W105 OF 2002 BETWEEN: WAGB APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE OF ORDER: 9 OCTOBER 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application is 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 W105 OF 2002 BETWEEN: WAGB APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: FRENCH J DATE: 9 OCTOBER 2002 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 The applicant was born on 1 June 1969 in Iran. He came to Australia by boat without lawful authority on 30 December 2000. He was taken into detention pursuant to the Migration Act 1958 (Cth) and held at the Woomera Immigration Detention Centre. For some reason, which is not apparent from the papers, he remained in custody until June 2001 without having lodged an application for a protection visa. In June 2001, he escaped from detention. However he was apprehended nine days later. He was subsequently charged with the offence of escaping from lawful immigration detention contrary to s 491(1) of the Migration Act as it then stood. The matter was dealt with by a stipendiary magistrate on 18 October 2001 at which time he was sentenced to a term of imprisonment of eight months, backdated to commence on 18 June 2001. Upon the expiry of his sentence he was returned to the detention centre. On 30 August 2001, he had lodged an application for a protection visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 17 January 2002, that application was refused. On 21 January 2002, he applied to the Refugee Review Tribunal ("the Tribunal") for review of the delegate's decision. The Tribunal hearing took place on 25 March 2002 at which time the applicant was accompanied by a migration agent. 2 On 28 March 2002, the Tribunal affirmed the decision not to grant a protection visa to the applicant. On 8 April 2002, he lodged an application in this Court for review of the Tribunal's decision. The Applicant's Claims and Evidence 3 The applicant's application for a protection visa was accompanied by a statement in the form of a statutory declaration sworn 4 October 2001 setting out the basis of his claims for a visa. In that statement the applicant said he is a citizen of Iran and holds no other citizenship, nor any right of residence in any other country. He is a Muslim Shi'ite. He is married with two sons who are living in Iran. He has six brothers and two sisters. His parents and two of his brothers are now deceased. 4 In 1993, the applicant had obtained a qualification in electronic welding and since then until about October 2000 he worked for a company as a welder and supervisor. In December 1999 or January 2000, a demonstration occurred at his work place. The demonstration was said to be a reaction to perceived inequalities in the way in which the company spent its money. The applicant was a supervisor at the time for about forty people. His fellow employees asked him to act as their spokesman and make representations on their behalf to what he called the Head Department. After speaking on their behalf he was promised that from the beginning of the Iranian New Year everybody would be treated fairly. The employees then resumed work. About four to five days later officials of the Company Information Department began arresting representatives of the employees including himself. They were told they were responsible for the demonstration and for publishing and distributing papers against the company and the government. He said he was detained for two days in a small dirty room and that nobody knew where he was. He was questioned about the demonstration. During this time he was bashed in a way that would leave no marks. 5 Subsequently the applicant was released. He was not allowed to return to work or to leave the town of Ahwaz He had to report twice a week to a police station in the area in which he was living. During this time his brother, who was working for the same company in its transport section, was arrested. His brother was kept in goal for about two months on the strength of a belief that he had distributed documents about the demonstration. After being released the applicant's brother returned to the company to find out when he could resume his job. He was told he could start again at the beginning of the Iranian New Year. However about ten days after his release he disappeared. Two weeks after that, the family received a phone call from a hospital saying they could collect his brother's body from the hospital. The hospital's response to oral inquiries about the cause of death was that it could not disclose the reason. The family was later given a letter saying that the brother had died from a drug overdose. They knew this could not be true as the brother was not a smoker and never drank alcohol. 6 Three months after the applicant had returned to work nothing had changed for the employees. They held another demonstration but he did not participate in it. During that demonstration the employees set alight company vehicles and sugar cane plantations owned by the company. About 200 of them were arrested by officers from the Security Information Department. After those arrests the rest of the employees resumed work. 7 On 19 October 2000, according to the applicant, he was arrested by three people as he was waiting to be picked up for work. He was forced into a car and after a few kilometres he was blindfolded. He was taken to the Information Department in Kian Pars. There he was questioned about what had happened to his brother and why he had applied for a passport. He was asked about the demonstration and about the burning of the sugar cane farm and of company cars. In the course of his detention he was beaten about three times a day throughout the week. He was beaten on the testicles, which started to bleed internally. He said his right testicle became swollen and he became unconscious. He woke up in hospital where he was guarded by a man who did not leave his bedside. Somebody else came and forced him to write a letter saying he was not involved in the demonstration or in what had happened within the company. The letter also said he could not return to work unless asked and there was a possibility that he would be sent to court. After writing the letter he was released. 8 The applicant's release followed a detention of one week. He was taken home but could not walk properly because of the wounds inflicted by the beatings. After much discussion his father-in-law said he should leave the country as his life was in danger. His family did not want him to suffer the same fate as his brother. His father-in-law sold some of the family furniture to get money for a ticket. He also gave the applicant some of his own money to help him leave. Subsequently he travelled to a town called Arak where he remained for forty-eight hours. He then departed for Shiraz and boarded a plane for Dubai. From there he flew to Bahrain and then to Malaysia. He remained in Malaysia for a week. There he contacted a people smuggler and then boarded a boat to Indonesia. In Indonesia he contacted another people smuggler. He remained there for seventeen days and then boarded a boat which took him to the Australian Territory of Ashmore Reef at which point he was taken into immigration detention. 9 The applicant said that after his departure, he was told by his wife that she had a letter summoning him to appear in court. He said this means he is now blacklisted as he obviously didn't attend the court hearing and had fled Iran. His photograph was published in an Iranian paper because he had escaped from the Woomera Detention Centre in Australia. He said that his home in Iran, his father-in-law's home in Arak and his brother's home were ransacked. Photos, videotapes, letters and other possessions belonging to him were taken. The company that he worked for said he had been dismissed. A man called at his home and told his wife that what he was saying in Australia would be dangerous for him. The applicant said he feared that if forced to return to Iran he would be killed. The government believed he was against them because of his participation in the demonstration at work. Another of his brothers was dismissed from his job in 1983 because of his political opinions and his support for the Toodeh Party which was against the government. 10 The applicant had been interviewed shortly after his arrival in Australia. In the course of that interview he had told the interviewing officer that he had always worked hard but remained in poverty because members of Hezbollah and those who were disabled or who had seen action in the war against Iraq were favoured. About a year before he left Iran he had complained about favouritism and was detained for forty eight hours, suspended from work for forty five days and forced to sign an undertaking to follow company instructions and not complain. He told the interviewing official that he had been planning to migrate to Germany but his plan failed. He then made arrangements to come to Australia and expressed the fear that he would suffer at the hands of security people if he returned to Iran. He used his own passport and left legally. He told the interviewing official that neither he nor family members had any affiliation with groups that opposed the government. In the statement in support of his application however, he said that he did not mention at the initial interview that his brother had been arrested because time was limited and he was told that that was not important. He also did not go into as much detail then as he did in his application for a visa. 11 In addition to the reference, in his written submission, to being beaten on the testicles while detained, the applicant also told the Tribunal at the oral hearing that he was beaten on the soles of his feet so much that he could not walk properly. He asked the Tribunal to refer to his medical file. The Tribunal pointed out to him that he had not claimed, at his initial interview with the departmental officer, to have been tortured and he had added the claim that he was beaten on the soles of his feet at the Tribunal hearing. When that was put to him, he said: "I said that I was tortured and during this beating and torture they have hit me on the face and head and also on my chest and my side but I haven't mentioned that either. I emphasised the most important of all and that was the damage… the injury that I received to my testicles and this is something that the evidence for it is still there." 12 At the end of the hearing the Tribunal said: "… I'm prepared to accept that you presented to a doctor with a particular symptom and told him that that symptom is a consequence of you being beaten around the abdomen and the testicles. And I'm also prepared to accept that, you know, a doctor might say that you do have that symptom and it is commensurate with your history… the history you've given him. It doesn't mean I accept your story and of course doctors don't ever check your story. Their obligation is to listen to your history and draw their own conclusions. But … it means … I don't, it's not necessary to wait to get a doctor's report because I'll just proceed on the basis that the doctor will find as you're telling me he will find, that you have a symptom that's commensurate with the claims you've given to him, the history that you've given to him." The Tribunal then asked the applicant's adviser whether that was a reasonable summary. She responded that it was "very reasonable". In truth it does not seem to have been a summary of anything. It was a statement of a position that the Tribunal was prepared to adopt. 13 In its reasons for decision, the Tribunal made the following statement on this point: "He told the Tribunal that he had not mentioned his brother's death nor his own torture at the entry interview because the people smuggler told him not to mention torture but say he came to Australia for economic reasons. He added that he was in a closed camp (in Australia), was not given any information, was given a short interview and was embarrassed about his torture. The Tribunal pointed out that he had referred to matters other than economics at that interview and he responded that he had many things to say. He said he had recently consulted a specialist who had diagnosed that he had injury to his testicles that is commensurate with his claim that he was tortured. The Tribunal was asked to postpone any determination until a medical report was provided. Mindful that the Applicant was in immigration detention, it agreed to proceed on the basis that the Applicant has symptoms that are consistent with his claims of torture. It explained that it did not follow that it was finding that he had encountered such torture in fact, as that remained a matter for consideration." 14 The Tribunal also referred in its reasons to other material provided to it by the applicant including a translation of an article from an Iranian newspaper or journal. This asserted that the Woomera Immigration Detention Centre is adjacent to an atomic test site. It referred specifically to the applicant and said his family in Iran had contacted Iranian officials and Interpol to seek help for him. Another article repeated similar information and noted that Iranians had sought intervention on the applicant's behalf. Another article was highly critical of conditions in the Centre. According to the applicant, the publicity he received would ensure he would be perceived as a "high profile" opposition activist in Iran. The Tribunal's Discussion and Findings 15 The Tribunal accepted that the applicant was an Iranian national. It noted that the delegate had not found him to be a credible witness and that his written review submissions addressed issues of credit particularly discrepancies between what he had said or omitted to say at his entry interview and what he had subsequently claimed. Those issues and others going to his credibility were put to the applicant by the Tribunal and discussed at the hearing. 16 The Tribunal found some parts of the applicant's claims were not credible. It accepted that an applicant might embellish or invent evidence in pressing claims for protection. It recognised that an untrue statement did not mean that all statements made by an applicant were untrue, nor did it mean that the applicant could not be a refugee on the basis of the remaining accepted facts. It recognised that it was possible for some applicants to be refugees even if they totally concocted a story as they might face a real chance of persecution merely by being part of a group whose members were persecuted. 17 In referring to the initial interview following the applicant's arrival in Australia, the Tribunal did not accept the applicant's contention that he had followed the people smuggler's advice not to mention torture and only to state that he came for economic reasons. In fact he had mentioned non-economic reasons such as his detention and suspension from work and the claim that security officials had persecuted Iranians returning to their country. He had also told the interviewer that neither he nor his family were involved in anti-government activities or with any political group. 18 The Tribunal accepted that the applicant was involved in demonstrations to pressure his employer to comply with labour laws and that the demonstrations were related to discrimination in favour of war heroes and devout Muslims. It accepted that he had been detained for two days and suspended from work for forty five days and required to sign an undertaking. The Tribunal did not however accept that he was detained a second time and severely tortured as he claimed after the interview. The Tribunal said: "Given that he says he was released for lack of evidence when he was initially detained, it is implausible that he would have to report to police twice a week and was banned from leaving Ahwaz. His claim that he was banned from leaving Ahwaz is at odds with his capacity to leave. Similarly, his departure from that city does not sit comfortably with his evidence that he had been so seriously tortured that he could hardly walk. Nor does his legal departure from the country, using a passport issued in his own name, sit comfortably with the claim that he was a known organiser of workers' protests and therefore of adverse interest to Iranian authorities." 19 The Tribunal observed that the failure to mention his brother at the initial interview led it to conclude that "… his brother was detained for two months and then killed because of his participation in the demonstrations, as subsequently claimed". There is an obvious typographical error in this passage as the Tribunal was plainly concluding that his brother was not detained and killed. The failure at initial interview to mention the second incident of detention and serious torture also led the Tribunal to conclude that there was no such second incident. 20 The Tribunal found that the applicant disclosed his core claims when initially interviewed. It said: "It does not accept his brother was killed for the reasons he alleged, nor does it accept the Applicant was detained a second time and tortured. It is satisfied that he has an injury to his testicles that might be consistent with blows in that part of his body, but it does not accept he received that injury in the circumstances he described. It is satisfied that when he left Iran, he was able to do so without any hindrance because he was of no adverse interest to the Iranian authorities, and he left for economic reasons." The Tribunal then referred to publicity received by the applicant in connection with his escape from the Woomera Immigration Detention Centre. But none of that publicity had suggested he was a critic of the Iranian authorities. It was directed to criticisms of the policies of the Australian government. Indeed, it disclosed that the applicant's supporters were willing to seek assistance from Iranian authorities in efforts contrary to his claims that he is sought for punishment by those authorities. Independent country information relied upon was directed to criticism of Iran which was not involved in publicity surrounding the escape. 21 The Tribunal was satisfied that the applicant escaped from the Centre because he did not like the conditions and believed he was about to be deported. He had not lodged any application for protection during the several months he had been held in immigration custody. 22 The Tribunal was satisfied that the applicant left Iran legally, was not wanted when he left there and had no profile with Iranian authorities as a dissident. His application for asylum was not an offence and even if he were questioned on return, the Tribunal was not satisfied that his application would be viewed as a political act. The Tribunal also referred in this context to the claim that the Iranian authorities had raided his house and confiscated various materials. But that was not supported in the facsimile from the applicant's wife who said they merely removed photographs of the applicant from the house. It said the applicant had already been questioned and released for want of evidence in early 2000 and returned to work before obtaining permission to leave Iran. It was implausible that the applicant would keep incriminating evidence at home and that his wife would continue to keep it after he left. It was also implausible that he would be the target of a summons more than eighteen months after the incident to which he claimed it related. The Tribunal accepted that officials had visited the applicant's house after his escape from Woomera was publicised and had removed photographs. But it found this was a routine response to publicity generated by the applicant in Australia and not an indication that he would face an increased chance of persecution if returned to Iran. It did not alter the Tribunal's conclusion that he did not face a real chance of persecution for Convention reasons in the reasonably foreseeable future. The Application for Review 23 The application for review of the Tribunal's decision set out no grounds. In the context of the Migration Act as it now stands, and as it stood at the time the application for review was lodged, the application would necessarily involve a claim for relief under s 39B of the Judiciary Act 1903 (Cth). That would be either the issue of a prerogative writ, injunctive relief or declaratory relief under s 39B(1A). The Applicant's Contentions 24 At the hearing the applicant was unrepresented and spoke on his own behalf. His first contention was that the Tribunal had prejudged its decision. He suggested that the Tribunal's decision accorded with some directive from the Minister for Immigration because of his escape from detention. He referred in this context to his medical records which he said showed the scars of the tortures that he had been through. He said that regardless of that material the Tribunal member had decided against him because its decision was already made. He said he wanted to show his scars to the Tribunal, but they didn't want to see them. They ignored the medical report. This was a clear indication that they were just ignoring the main evidence. The second point upon which he relied was his sur place claim. He said his case is now well known in Iran and he could not go back. 25 The Court asked the applicant whether, when he spoke to the Tribunal, he had told them that he had been seen by a doctor in Acacia Prison. He said he had told the Tribunal, but they disregarded all he had said. Subsequently the Court invited counsel for the Minister to provide relevant extracts from the transcript of the hearing before the Tribunal where the question of the medical report and the availability of the evidence was raised. A copy of the relevant portions of the transcript has been prepared and sent to the applicant and put in evidence exhibited to the affidavit of Rhonda Elmae Spano, a legal assistant employed by the Australian Government Solicitor. The applicant was given a further opportunity to comment on the transcript. He appeared at a reconvened hearing on 8 October 2002 by video link assisted by an interpreter. He told the Court that he had nothing to add in relation to the transcript. 26 The extracts from the transcripts of the hearing, which were referred to earlier in these reasons, indicate that the applicant told the Tribunal of the injury to his testicles and to the soles of his feet. He referred the Tribunal to his medical file at the detention centre and at the prison to which he had been taken after his attempted escape. He said: "It shows my medical state in terms of my health situation." The Tribunal challenged the applicant, pointing to the fact that at his initial interview he had made no claim of torture. Later, it was said, he claimed to have been beaten around the stomach and testicles and later again added that he was so badly beaten on the feet he could hardly walk. In response, the applicant emphasised the injury to his testicles as something of which there was current evidence. 27 At one point the applicant's adviser told the Tribunal that he had been to see doctors at Acacia Prison. Most of the medical evidence would be there. The adviser said that copies of the medical records could be obtained. They would support the applicant's claims that he had suffered torture to his testicles. Subsequently, the Tribunal told the applicant's adviser that it accepted that the applicant had a swollen testicle commensurate with being hit at some time in the past. 28 The adviser told the Tribunal that she would obtain a copy of the applicant's medical evidence and if there was nothing outstanding about the nature of the injury she would confirm to the Tribunal that that was the case. The Tribunal said that if the report went no higher than the statement that the applicant suffered symptoms commensurate with torture that much could be accepted. Conclusion 29 There is nothing in the Tribunal's conduct or reasons to establish actual bias or want of good faith on its part in the decision-making process. The Tribunal did not ignore the medical report. It was prepared to accept as factual the propositions for which the applicant's adviser wanted to invoke the medical reports. The Tribunal also considered and rejected the applicant's sur place claim. No error is apparent from its reasoning in that respect. 30 The grounds for review of the Tribunal's decision are limited by the operation of s 474 of the Migration Act as interpreted by the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 which was delivered on 15 August 2002. Broadly speaking, review is available in the exercise of the Court's jurisdiction under s 39B of the Judiciary Act if a Tribunal decision is not made in good faith, is not reasonably capable of reference to the subject matter of the Act or the power under which it purports to be made. A fourth ground is that the decision has been made in contravention as an "inviolable limitation" imposed upon the relevant power. On the matters advanced by the applicant and on the materials before the Court, there is nothing in the Tribunal's decision or the procedures it followed to indicate that any of these grounds could be made out. 31 In the event, and for the preceding reasons, the application will be dismissed with costs. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French. Associate: Dated: 9 October 2002 WAGB appeared in person via Video link. Counsel for the Respondent: Mr AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 27 July 2002 Date of Final Submissions: 8 October 2002 Date of Judgment: 9 October 2002