FEDERAL COURT OF AUSTRALIA NADK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1470 MIGRATION – Tribunal refused protection visa – application for review dismissed - application for extension of time to file notice of appeal – Iranian national seeking protection visas for himself and family – persecution feared if return to Iran due to adherence to small minority ancient religion – principal applicant lodged notice of appeal out of time – late filing on account of delay in obtaining authentic documentation verifying basis for apprehension of harm in Iran – change in country information since Tribunal decision – next of kin already Australian residents – adjournment of decision pending pro bono legal assistance for applicant. Migration Act 1958 (Cth) ss 417, 474 Gilani v Minister for Immigration and Multicultural Affairs [2002] FCA 327 cited WAAW v Minister for Immigration and Multicultural Affairs [2002] FMCA 64 cited Guo Wei Rang v Minister for Immigration and Ethnic Affairs and Another (1996) 135 CLR 421 cited NADK OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1147 OF 2002 CONTI J 26 NOVEMBER 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1147 OF 2002 BETWEEN: NADK OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: CONTI J DATE OF ORDER: 26 NOVEMBER 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for an extension of time to lodge a notice of appeal from the decision of Tamberlin J made on 13 March 2002 be adjourned with liberty to restore on fourteen days' notice in writing. 2. The costs of the application to date be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1147 OF 2002 BETWEEN: NADK OF 2002 APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: CONTI J DATE: 26 NOVEMBER 2002 PLACE: SYDNEY REASONS FOR DECISION ON ADJOURNMENT OF APPLICATION FOR EXTENSION OF TIME TO LODGE NOTICE OF APPEAL 1 This is an application for an extension of time to lodge a notice of appeal from the decision of Tamberlin J, made on 13 March 2002 ([2002] FCA 327), to dismiss an application for review of an earlier decision of the Refugee Review Tribunal made on 5 September 2001. The application is brought on behalf of the abovenamed applicant, his wife and two children, all of whom have been living in the Port Hedland Detention Centre since at least December 2000. The application for review did not fall within the scope of the privative clause the subject of s 474 of the Migration Act 1958 (Cth) ("the Act"). 2 The adult male applicant Iraj Gilani (to whom it is hereafter convenient to refer to as "Mr Gilani") was born in Iran in 1969, and his wife the adult female applicant Maryam Poomi Zari Desful was born in Iran in 1976. There have been two children of the marriage, a son Samer Gilani born in 1995, and another son Adel Gilani born in 1996. They arrived in Australia together in mid-August 2000 by boat from Malaysia, for which journey Mr Gilani claimed to have paid US$5800 to so-called "people smugglers". 3 Irrespective of the basis for the applicants' apprehension of persecution, if returned to Iran, I would infer that at least a significant motivation on the part of the applicants in seeking refugee status in Australia is on account of the circumstances that two adult sisters and one adult brother of Mr Gilani have resided in Australia for some time, and two uncles and an aunt of the applicant have also resided here for some time, and that all appear to be well established in occupations or businesses in Australia. Moreover both of Mr Gilani's parents visited Australia from Iran for about six months in late 1999 or early 2000 in order to visit those relatives, but they have not since returned to Australia. Mr Gilani's father operated for many years a jewellery shop in Shiraz (Iran), under the name "Mehran Gilani Jewellers", until the business was sold prior to their visit to Australia. Mr Gilani's younger brother still resides in Iran. 4 Mr Gilani was engaged in military service in Iran in the years 1988 to 1990, and apart from that period of engagement, he worked in his father's business from 1985 to 1992. That engagement provides the central basis for his fear and apprehension for returning to Iran, as I will later explain. Thereafter Mr and Mrs Gilani spent three years in Kuwait, Mr Gilani being employed there in a jewellery business, though they visited Iran from time to time during that period, doubtless to link up with other family members. 5 The basis of the family claim for asylum in Australia is that they belong to an Iranian religious minority called Sobis, Sabians or Mandians. A well researched judgment of Driver FM in WAAW v Minister for Immigration and Multicultural Affairs [2002] FMCA 64 (12 April 2002) contains the following information in relation to that religion: "12. … I have found this case to be a difficult one. The main basis on which the applicant seeks a protection visa is that he says that he s a member of a tiny religious minority known as Mandians or Sabians, who are persecuted in Iran. The applicant has made that claim consistently and the RRT accepted that he is a member of the Mandian or Sabian religion. 13. It seems from information relied upon by the RRT that the Mandian religion is an ancient one whose adherents revere John the Baptist. Mandians do not accept the divinity of Jesus Christ. They may be descended from the Jewish Essenes sect to which John the Baptist apparently belonged. They form a tiny minority in Iraq and Iran of possibly as few as 20,000 people. 14. I am satisfied that the RRT correctly adopted the definition of refugee for the purposes of the Convention and Migration Act. The RRT also took into account information provided by the applicant and his advisers about the treatment of Mandians in Iran as well as country information. That information clearly points to Mandians being subject to discrimination in Iran. The Christian and Jewish minorities in Iran are officially recognised. Information concerning the status of Mandians/Sabians is somewhat equivocal. It appears that in general terms Mandians/Sabians are regarded as either a branch of Christianity or a branch of Judaism and are therefore granted some measure of official recognition. 15. On the other hand, Mandians clearly do not have official recognition in their own right and this leaves them in something of a twilight zone. The information provided to the RRT and relied upon by the RRT establishes that Mandians face discrimination in particular forms. For example, they are required to pay higher taxes than Muslims. There was also material before the RRT which the RRT accepted that at least one Mandian place of worship had been confiscated by the authorities. 16. It also seems that Mandians may be subject to petty discrimination in terms of stone throwing by individuals. Mandians are regarded as unclean and cannot touch food in public places. The RRT also took into account that in some respects Mandians/Sabians do not receive the same legal (sic) of protection from the authorities that other Iranians enjoy. For example, they may be subject to discriminatory treatment in the courts. The evidence of a Mandian may not be accepted if it is not supported by an Islamic witness. These are all examples of discrimination that would be regarded as abhorrent in our society. …" 6 In his statement of 23 January 2001 furnished in connection with his application for a protection visa, Mr Gilani explained that his major difficulties in Iran began when he was due to commence military service there in 1988. Had he disclosed to the Iranian authorities that he was "Sobi", he would not have been allowed to service in the Sepah, one of the Islamic organisations and military supporters of the Iranian regime, but would have been transferred to what he described as "harsh locations on the borders". Since completion of his military service, Mr Gilani has harboured the fear that his deception of the military authorities about his religious affiliation would be discovered, with the severe consequences which he claimed would follow. Although I have only encountered Mr Gilani on the one occasion, and then by video-link to the Port Hedland Detention Centre in Western Australia, I did not form any view to suggest otherwise than that he was profoundly apprehensive. 7 After spending time in Kuwait, Mr Gilani returned to work in his father's shop in Iran. Ultimately he related a cruel experience at the hands of the authorities, as follows: "In May 1999, some policemen came to our shop and accused me of buying stolen gold. The police had with them a handcuffed man who acted as a witness against me. The allegation was not true and I had no idea about stolen gold. I was ordered to collect all the gold in the shop and they sealed my safe in the shop and also they sealed the shop. I was handcuffed and taken to the police. The first thing they asked me was to confess. I told them that I would not buy any goods, without proof of ownership. That was in section No 2 of the police station. The supervisor ordered me to be "barbequed chicken", which means to be tortured. While my hands were handcuffed, they put a stick between my knees and they lifted me and placed me between two tables so my hands were down and my feet were on the table. They started hitting my feet with an electric cable which was placed in the sun, near the window. I could feel the pain going through my whole body. After about 15 strokes, I became unconscious. Then by pouring water on my face, I became conscious. I felt I was choking because of the water being in my airways. So they took me down from the table and they wrote whatever they wanted on a piece of paper and asked me to sign it, which I refused. They threatened that I would be tortured again. I got scared and I signed the paper. After they got my finger prints, they kept me in detention, in the basement. I was kept there for 1 week. During that time, I was questioned twice. Finally I was released on bail, which was the certificate of title of my house, awaiting court. In August 1999, I was summoned to court and the judge ordered that I should receive 75 strokes of the cane. I was handcuffed and my feet were tied. I was put on a metal bed and I received 75 strokes. My back was bleeding up to my hip and for one week, I could not sleep on my back. I had a criminal record as a result of this incident. I was viewed by other people and the government as a criminal. In September 1999, Setad Khabari, (office where people inform on other people) part of the Minister for Information, contacted my father and asked him to go to the office. After he showed up, he was blindfolded and kept in a room. Then they forced a light beam on his face and he was interrogated. He was asked questions about my religion, how many people of my religion lived in Shiraz, different aspects of our religion, gatherings and ceremonies and whether we preached our religion. My father was questioned because he is one of the leaders of the Sobi in Shiraz. After 2 sessions of interrogation and getting books and documents, he was told that if he wanted to live in the city, that he would have to lead a secret life and avoid telling others that he was Sobi. Any gathering or religious ceremony had to be authorised by the authorities. Although in Shiraz, there are some Jewish and Christina minorities, because our religion is not recognised, the authorities can do whatever they want with us. They actually call our religion, Kafar, an English-made religion. Since my father was warned by the authorities, our family's life was turned upset down and we lived in fear. We felt that we under constant surveillance by the authorities. We were not able to say anything about our religion. We did not even contact our other religious colleagues for a while. …" 8 After the sale of the family shop, and apparently following the return of his parents to Iran, after visiting his two sisters and brother and other relatives in Australia, Mr Gilani detailed how he and his wife and children escaped from Iran, with the assistance of a "peoples" smuggler. He continued as follows: "I chose to come to Australia because we would be able to practise our religious beliefs openly, because of my family living here and because I could afford to come here. I chose the unlawful way of coming to Australia because the Australian government would not have granted us a visa and we were in fear for our life." 9 The Minister's delegate made the following findings in respect of Mr Gilani's claims (inter alia): (i) "The applicant arrived in Australia with documentary evidence of his identity and citizenship". (ii) "In relation to the applicant's fear of being killed by the government authorities, I note that the High Court in Chan's case… was unanimous in recognising that a threat to life or freedom always amounts to persecution". (iii) "I find that the harm or mistreatment feared by the applicant is of sufficient gravity as to constitute persecution". (iv) "I find that the applicant fears harm or mistreatment for a Convention reason". (v) Country information at CX46890 (issued 1 December 2000) "… indicates that the Sobis do face some harassment in Iran however, this appears to be at a low level and it further indicates that the Sobian religion is in fact recognised in the Iranian constitution". (vi) "I accept that the applicant has faced some harassment because of his religion but I find that he has exaggerated these problems to enhance his claims". 10 The delegate's conclusions immediately preceding his decision were close to borderline in accepting the claims of the Gilani family; the same are reproduced below: "5.4 Cumulative Grounds In certain situations, the various elements comprising an applicant's treatment (individual measures not in themselves amounting to persecution), when combined with other adverse factors may, if taken together produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on "cumulative grounds". However, I consider that the individual claims made by the applicant provides evidence of adverse treatment of a nature or severity so as to amount to persecution (my emphasis). I find that his fear is not well founded. I assess therefore, that there is a cumulative element involved which substantiates a claim for refugee status. 5.5 Findings of fact Iraj Gilani does not have a real chance of Convention based persecution if returned to Iran and that his fear of persecution on return is consequently not well founded." 11 The decision of the Refugee Review Tribunal was made on 5 September 2001. A great deal of material was placed before the Tribunal on behalf of the Gilani family, comprising as it did comprehensive, and if I may say so, formidable submissions compiled by Dr Al Jabiri & Associates, and accompanying statements of the applicant, his wife and his family resident both here and abroad. Much of the Tribunal's apparent bases for decision do not sit readily with certain of the findings of the Minister's delegate. The Tribunal member did not accept the credibility of most of what had been put forward on behalf of Mr Gilani, and said so empathically both in the course of the hearing and subsequently in its decision. For instance on page 22 of the decision, the following appears: "The Tribunal pointed out to the applicant that it found his claims in regard to the lashing, to the November 1999 incident regarding the Mojahedin to be so far fetched as to be ridiculous. The Tribunal also noted that it found the applicant's claims to be exaggerated and lacking in credibility and fabricated for the purposes of gaining refugee status in Australia. The Tribunal asked the applicant if he wished to comment on this suggestion? The applicant stated that he has given an oath." The lashing claim did not however emerge belatedly, but was articulated at the very outset, namely by statutory declaration of 23 January 2001, and was not the subject of any adverse finding of the delegate. The Tribunal's conclusions in relation to the applicant's claims and evidence, and those of his wife, were expressed at pages 49 and 53 of its decision, as follows: "The Tribunal has found the applicant's claims and evidence to be seriously lacking in credibility and it cannot be satisfied that the applicant has been truthful to the Tribunal about his claims to be a refugee. The Tribunal cannot be satisfied that the Iranian authorities have any on-going adverse interest in the applicant. The Tribunal is not satisfied that the applicant has a well founded fear of harm for a Convention reason. … The Tribunal cannot be satisfied on the evidence available to it, that the applicant wife has faced harm in the past amounting to persecution for the purposes of the Convention for reasons of her religion, nor can it be satisfied that the applicant wife would face such harm in the foreseeable future upon return to Iran. The Tribunal cannot be satisfied that the applicant wife has a well-founded fear of harm for reason of her religion." 12 As to the practice of the Sobian religion in Iran, and the involvement of the applicant's family in relation to that religion, the following conclusions were reached by the Tribunal at pages 50, 51 and 52: "The Tribunal finds that as a religious minority in Iran, the Sabian/Mandaeans community faces some discrimination, and that as individuals, Sabian/Mandaeans face some discrimination. The Tribunal is supported in this finding by the independent evidence [see above]. The Tribunal accepts that the applicant wife may have been verbally abused by the Moslem majority because she is Sabian/Mandaean, and she may have had to be discreet about her religious affiliations and that these things may have been unpleasant. However, it does not consider that such treatment amounts to "serious punishment or penalty" or "significant detriment or disadvantage" [see McHugh J in Chan's Case] and therefore does not amount to persecution for the purposes of the Convention. … The Tribunal accepts that one of the Mandaean places of worship has been closed, and that because of this, the community was inconvenienced. It notes however, that according to the independent evidence, they have been able to continue to perform their essential religious rituals including baptisms and marriages. … Whilst the applicant wife may have faced some inconvenience, disruption and limitations in practising her religion, the Tribunal cannot be satisfied that the inconveniences, disruptions or limitations prevented the applicant wife from practising the essential aspects in her religion in Iran prior to her departure or that she faced harm amounting to persecution for reason of her religion. Furthermore, the Tribunal cannot be satisfied that she would face harm amounting to persecution upon return to Iran for reasons of her religion." 13 Mr Gilani thereafter made application for the review of the Tribunal's decision to this Court, and as earlier recorded, that application was dismissed by Tamberlin J on 13 March 2002: see [2002] FCA 327. On that occasion he was represented by counsel and solicitors. The crux of his Honour's reasoning and conclusions appears in pars [3-8] of his reasons for judgment, which require entire reproduction below: "Accordingly, it is said that the persecution is directed to the basis of his faith as the criterion of persecution and that therefore he is within the Refugees Convention. A number of matters are raised in the written submissions on behalf of the applicant and in the application for review, but during the hearing before me only one matter was pressed which related to what should have been considered by the Tribunal in relation to the return or possible return of the applicant and his family to Iran. The Tribunal found that he was of the faith which he claimed and so was his family but it did not find his other claims to be credible. It also found that, in relation to his protection visa application and his claims to the Tribunal, the applicant had perpetrated acts of deceit and untruths and he could not be found to be anything other than totally lacking in credibility. There is no challenge to these findings and indeed they are questions of fact. The challenge which is made is that the Tribunal failed to inquire into or consider the fate or the possible risk to the applicant and his family if returned to Iran without travel documents. The only document it is said which the applicant could produce would be a military card testifying as to his military service and this contains false information. It is submitted that the Tribunal ought to have inquired as to whether if returned there was a real risk that the authorities would check the details on the applicant's military card and discover that the applicant had either forged the card or had carried out military service contrary to what is accepted in the Tribunal's decision as being Iranian law namely that a non-Muslim could not serve in the army. As a consequence of not having travel documents it is submitted that it is logical to accept that the applicant and his family would be subjected to a greater degree of scrutiny than would otherwise normally be applicable. Accordingly it is said if this possibility exists as a real chance, then this is a matter which the Tribunal did not deal with and which it ought to have dealt with. It is submitted that inquiries ought to have been made as to what might occur if the applicant returned and the likely dangers that he would face, but no such inquiries were made. It is said that this is a fundamental error of law, sufficient to warrant the setting aside of the decision of the Tribunal. There are several difficulties with this submission. The first is that no claim for protection as a result of the making available of information in connection with the present application was made to the Tribunal. It is a function of this Court on judicial review to examine what was before the Tribunal and the claims which were made to the Tribunal in order to determine whether there has been error of a reviewable kind. If no submission was made to the Tribunal then the application must be on the basis that the facts gave rise to a necessity to make an inquiry. I am not satisfied in the present case that the facts did give rise to the need to make such an inquiry. The matters which have been mentioned as possibilities are purely matters of speculation and there is no evidence to indicate what Iranian authorities would do in relation to the return of the applicant with the only document in his possession being the military service card to indicate his status." 14 The grounds propounded by the applicant for an extension of time, apparently prepared by Mr Gilani without legal assistance, are as follows: "1. When I had appealed to the single Judge of Federal Court, his Honour had put to my lawyer that whether I could prepare some special documents or not. And these document could be very effective in the court decision. 2. In that time I didn't have these documents and I didn't know how and when I would be able to prepare and get them. 3. I knew that I would have no chance in the Full Federal Court if these documents are not prepared. Then I didn't appeal in the Full Federal Court and waited for some opportunities to be appeared for getting these documents. I got these documents months after the court's decision." 15 In the light of the passing of nearly seven months since the decision of Tamberlin J, and the obvious soundness in principle of his Honour's reasoning, it is entirely understandable that the Minister strenuously opposed in principle the present application for an extension of time to appeal, and his Honour came to the view which he did. There has since emerged however certain matters of relevance which were not placed before Tamberlin J at the time he made his decision to dismiss the application for review, which I will now relate. The applicant informed me that notice of appeal had not previously been lodged because some form of documentary confirmation was being sought in Iran as to the likely fate to which Mr Gilani would be exposed if he was returned, along with his family, to Iran. He further informed me that the documentary material would be faxed to the Court within a day or two. This material is now to hand, and is attached by way of schedule to these reasons for judgment. Moreover there has emerged in the meantime certain information concerning circumstances and conditions of striking relevance prevailing in Iran, which are at odds with the country information which seems to have made such a radical impact upon the Tribunal in its decision-making. One of those circumstances is the country information exposed in Magistrate Driver's reasons for judgment which I have extracted above. The other is Australian media publicity which will be later adverted to below. 16 The implications of the translated document now to hand, purportedly emanating unofficially from Iran, are prima facie radical, if the original document is authentic. At least for that reason, I think that I should not proceed further with the present application until the applicant has been given the opportunity of establishing such authenticity, so far as that can be possible in the circumstances prevailing. One needs only a modicum of imagination to predict the fate of Mr Gilani and his family, given the information contained in the document is authentic, yet they are returned by the Minister to Iran. I therefore propose to adjourn the proceedings the subject of the present application in order to afford the applicant the opportunity of providing affidavits as to the following matters: (i) verifying the document in the Farsi form obtained by the father; (ii) the accuracy of the father's translation; and (iii) the steps taken by Rita Gilani, the applicant's sister, to obtain the document, set out in chronological sequence. 17 It is obvious that the applicant's task of furthering the present application for leave, and in particular, of satisfying these requirements, or at least throwing light upon the same, is well beyond his capacity so to do as a detainee at Port Hedland, along with his wife and two children. I therefore propose to refer this matter to the New South Wales Bar Association for the purpose of obtaining pro bono assistance for the applicant in relation to the conduct of the present application. 18 I should add the further observation that I presently have reservations as to the efficacy of the country information relied upon by the Tribunal, and in relation to which I am inclined to infer contributed at least materially to the Tribunal's findings so adversely framed in relation to Mr Gilani. Moreover quite apart from the country information which Driver FM was able to access in relation to a member of the Sabian or Mandian religion in the proceedings which his Honour determined, there appeared in "The Age" newspaper edition on Friday 10 May 2002, an article headed "No escape from persecution", which provides a further apparent update to the country information to which the Tribunal paid regard, and which on its face requires that earlier country information to be radically qualified. That article is reproduced on the internet at the web site "http://www.hraic.org/chat/muslim _intolerance_in_detention_centres.html". 19 I am conscious of the circumstance that this interim position which I have taken imposes further cost to the resources of the Commonwealth, Mr Gilani having been in detention for nearly two years. On the other hand, I do not overlook the circumstance that there is evidence in the green application book, which was before Tamberlin J, to the effect that this man, his wife and two children have the family resources and connections in Australia, such as to conceivably mitigate, if not meet, that further cost. Moreover, Mr Gilani did not strike me, in the course of the video conference, as being other than genuinely distraught as to the outcome for his wife and children, as well as himself, in the event of their return to Iran. The claims which he and his family have made may well possess at least a degree of exaggeration, but whether the same are capable of carrying the severity of the reasons for the conclusion of the Tribunal may well be another matter, and may involve considerations well beyond that of the Tribunal's findings as to credibility. 20 The following passage in Guo Wei Rong v Minister for Immigration and Ethnic Affairs (1996) 135 ALR 421 at 460 (Foster J) contains the observations which in principle may well be here apposite in relation to the views which have been expressed in the Tribunal concerning the testimony of Mr Gilani and his family: "It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. Exaggeration or even fabrication of parts of a witness' testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony. Where proof beyond reasonable doubt is required, self-contradiction, inconsistency and evasiveness may, of course, give rise to sufficient doubt to warrant the rejection of evidence. However, in cases where only a real possibility need be shown, care must be taken that an over stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted." Further at 468 as follows: "In my view, a proper application of the definition does not require that all applicants be, as it were, pinned irrevocably to the establishment in toto of all allegations made in support of their claims. Although resort to exaggeration or even fabrication is distinctly unwise, the finding of either should not necessarily mean that the claim is doomed. There must always remain the possibility that, notwithstanding such blemishes, there is nevertheless a significant basis of truth in the material which can establish a real chance of persecution. This procedure is inquisitorial not adversarial. It is not a matter of the applicant making out a case; rather the interrogator should seek to ascertain the truth." 21 I will therefore withhold for the time being from determining the present application for an extension of time to appeal. In the meantime, I would recommend that irrespective of the purposes of the adjournment which I have outlined, further consideration be given by the Minister to the impact of the subsequent country information in relation to persecution, in Iran, of adherents to this small minority religion of ancient non-Islamic origin, in the context of s 417 of the Act. I therefore order that the application be adjourned to enable the applicant to obtain more probative material relating to the documents attached to these reasons, with liberty to either party to restore on fourteen days notice in writing to the other, and that the costs of the application to date be reserved. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 26 November 2002 Applicant appeared in person with interpreter. Counsel for the respondent: T Reilly Solicitor for the respondent: Australian Government Solicitor Date of Hearing: 13 November 2002 Date of Judgment: 26 November 2002