FEDERAL COURT OF AUSTRALIA WAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1504 Judiciary Act 1903 (Cth) s 39B Migration Act 1958 (Cth) s 91R(3), 474(1), 474(2) NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 298 cited Plaintiff S157/200 v Commonwealth of Australia (2003) 195 ALR 24 cited Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 applied VAAW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 259 cited WAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 85 affirmed WAAV v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS W174 of 2002 RD NICHOLSON J 15 DECEMBER 2003 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W174 of 2002 ON APPEAL FROM A FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: WAAV APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 15 DECEMBER 2003 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's cost of the appeal to be taxed. 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 W174 of 2002 ON APPEAL FROM A FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: WAAV APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 15 DECEMBER 2003 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an appeal from the decision of Federal Magistrate Driver given on 14 May 2002 (WAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FMCA 85). In that decision the application by the appellant to review a decision of the Refugee Review Tribunal ('the Tribunal') made on 8 October 2001 was dismissed. The decision of the Tribunal affirmed the decision of a delegate of the respondent not to grant to the appellant a protection visa (class XA) visa. 2 The application for review was lodged on 14 October 2001. It therefore attracted the application of the Migration Act 1958 (Cth) ('the Act') in the form in which it was following amendment with effect from and including 2 October 2001. 3 At the hearing the appeal was dismissed. The following are the reasons for that decision. Background circumstances 4 The appellant claimed to be a citizen of Iran. He said that he had left Iran following a problem with the Ettela'at, a national security agency, which accused him of assisting anti-Government rebels (although the appropriateness of the translation of that description is in dispute and is the focal point of the appeal). He claimed also to fear harm from the rebels if he refused to help them. 5 In support of his application for a protection visa, the appellant said further that: (a) The regime in Iran regarded the appellant and his family as dissenters. His family was from a remote village near the Iran/Afghanistan border. His father was the Khan (landowner and head of the village). The Islamic regime harassed and persecuted the powerful Khans all over Iran, including his father, and confiscated nearly all of the family's lands; (b) His father had assisted dissenters against the Iranian regime by leading them into Afghanistan and the appellant and his father had helped many dissenters, especially members of the Mojahedin-e-Kalhq (MKO); (c) From about 1991 to 1992 the appellant's home area became a hideout for thugs and drug smugglers, assisted by being so remote. The appellant had given food to smugglers and the next day members of the Ettela'at attacked his house, and beat him severely; (d) The Ettela'at had given the appellant's family guns to kill any smugglers who approached the village. The appellant and his brothers accepted this, the permission to carry guns also enabled them to assist dissenters flee the country more easily; (e) While his brother was assisting some dissenters leave Iran, they were ambushed by Ettela'at forces and his brother was killed. One of the dissenters was captured and revealed the identity of the appellant's brother; (f) The appellant was informed by one of the villagers that his brother had been killed, the Ettela'at had arrested his father and one other brother, and they were looking for him. The appellant then left Iran immediately. 6 He said that if returned he would be arrested, interrogated and tortured as a 'renegade Khan dissenter' before receiving a harsh sentence in the Revolutionary Court. Before the delegate the appellant made the further claims that his father and another brother had been shot by security forces, and there was a warrant out for the appellant's arrest. He also then claimed that before leaving Iran he wrote two letters to newspapers exposing the Ettela'at for paying money to kill people, and gave these letters to his wife to send. 7 The delegate of the Minister refused the application for a protection visa. 8 The appellant applied to the Tribunal for review of the delegate's decision. He lodged a supplementary statement, a letter from his wife and death summary reports said to be for his father and two brothers. On the same day the appellant's advisor transmitted to the Tribunal a counselling form from the Curtin IRPC which stated that the appellant suffered anxiety and depression. 9 On 20 September 2001, the Tribunal received a handwritten note from the Broome Congregation of the Uniting Church stating that the appellant had been baptised into the Christian faith on 12 August 2001 and had been a regular attender at worship. Tribunal decision 10 On 8 October 2001 the Tribunal made a decision affirming the delegate's decision not to grant a protection visa. 11 In the findings and reasons the Tribunal: (a) accepted the appellant is an Iranian citizen; (b) took account of the appellant's depressed and anxious condition and the likely effect that had on his ability to express the full extent of his claims at various times; (c) found that the appellant was not credible in respect of key aspects of his claim, and that several key elements of his claims lacked plausibility; (d) did not accept the death summary reports as genuine or, even if genuine, as supporting the appellant's claim due particularly to lack of any detail as to cause of death. 12 The Tribunal concluded that it was not satisfied that the appellant or his family had assisted political dissidents, or that he or his family were of adverse interest to the Iranian authorities for a Convention reason. It did not accept that he left Iran as a fugitive. Finally, the Tribunal considered the letter from the Uniting Church. There had been no claim based on the appellant's conversion to Christianity and the Tribunal noted that the appellant had not at any time sought to make a sur place claim. Under s 91R(3) of the Act the Tribunal was not satisfied, on that evidence and having regard to its overall assessment of the appellant's credibility, that the appellant had been baptised and attended services for reasons other than for the purpose of strengthening his claim to be a refugee. Federal Magistrate's reasons 13 The appellant applied for review of the decision of the Tribunal on the grounds that: (a) Procedures that were required by the Act to be observed in connection with the making of the decision were not observed. (b) The decision involved an error law being an error of law involving an incorrect interpretation of the application of the law to the facts as found by the person who made the decision. (c) There was no evidence or other material to justify the making of the decision. 14 His Honour was hearing the matter before the decision of the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 298. He held that the effect of s 474(1) of the Act was that he could review a decision of the Tribunal on 3 bases: (a) that it was not a bona fide or genuine attempt to exercise the decision-maker's power; (b) that the decision displayed a constitutional or statutory irregularity on its face; or (c) the decision did not relate to the subject matter of the legislation or was not reasonably capable of reference to the power given to the Tribunal. In this basis, His Honour seems to have accepted a wider basis for review than was subsequently found by the Full Court in NAAV, where the criterion of an 'inviolable limitation' or 'jurisdictional factor' was given a more restricted application. 15 In submissions before the Federal Magistrate the appellant raised five matters. The first concerned a letter from his spouse. His Honour concluded it was apparent the Tribunal did not regard the letter as genuine and the issue of the date of the letter was not material. The second issue concerned the appellant's conversion to Christianity in relation to which the appellant said the Tribunal should not have said anything about it because he did not rely on it. The Federal Magistrate held it was clear from the way the Tribunal approached the matter that it disregarded the letter concerning his alleged conversion. The third issue concerned three death certificates relating to the alleged death of the appellant's father and two brothers whom he asserted died in the course of anti-government activities. His Honour said the Tribunal had found that, even if the documents were genuine, they could not support the appellant's claims because they had said nothing about the circumstances in which the individuals died. The fourth issue concerned the appellant's departure from Iran in relation to which the Tribunal rejected an explanation from the appellant. His Honour held there was a reasonable basis for the Tribunal to so decide. The final issue concerned alleged supply of guns to his family by the Iranian intelligence service in relation to which there were adverse conclusions on the appellant's credibility. The Federal Magistrate found such conclusions were reasonably open on all the evidence. 16 Therefore he concluded that the appellant was unable to satisfy him that there was any statutory jurisdictional error or indeed any error of law by the Tribunal in its decision. He therefore dismissed the application. Grounds of appeal 17 The amended notice of appeal identifies two grounds of appeal. The first is error in the Federal Magistrate relying on the Hickman conditions. The second is that procedural fairness was not accorded to the appellant by the Tribunal. Contentions 18 The contentions for the appellant and the respondent are reflected in the reasoning which follows. Reasoning on appeal 19 In relation to the first ground of appeal it is accepted by the respondent that the approach taken by the learned Federal Magistrate to the operation of the privative clause was erroneous. The Full Court in VAAW v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 259 considered the question of when the Court should allow the appeal on the ground of such an error, set aside the decision of the Federal Magistrate, and remit the proceeding to the Federal Magistrates Court for hearing and determination in accordance with the law as set out in Plaintiff S157/200 v Commonwealth of Australia (2003) 195 ALR 24, and when it should itself hear and determine the question whether the Tribunal's decision was infected by jurisdictional error. The Court stated that the appropriate course to take 'depends on the circumstances of the particular appeal, including the nature and extent of the evidence to be considered and whether there is an arguable prospect of success' (at [8]). Where there is no reviewable error in the decision of the Tribunal, the appeal ought to be dismissed. 20 In the present case, if the appellant does not identify any error in the decision of the Tribunal or the procedures by which it arrived at its decision which would amount to jurisdictional error, the Court is able to determine the matter. 21 In relation to the second ground of appeal, the case for the appellant relies upon the following, which is a fresh issue arising on the hearing of this appeal and which was not, therefore, before the Federal Magistrate. 22 In the record of the arrival interview with the appellant it is stated in English that when asked 'why did you leave your country of nationality …' the appellant responded by stating 'one night rebels (anti-government) came to his door asking him for food …'. It is said for the appellant that the reference to anti-government rebels is a misinterpretation of the word 'ashari', the correct translation of which is more akin with 'criminals including drug smugglers'. That is, the correct interpretation does not contain a political connotation. On the face of it, the alleged mistranslation was potentially more favourable to the appellant because it contained the political connotation. 23 In the course of the reasons of the respondent's delegate reference was made to a change by the appellant from his protection visa claim where he referred to 'anti-government rebels' and to his subsequent interview where he referred to 'drug smugglers'. The delegate's decision, however, played no further part in the determination of the appellant's claim because the decision was remade by the Tribunal. Nevertheless, the contentions for the appellant appeared to suggest, albeit perhaps faintly, that adverse findings continued to be made by the Tribunal based on the mistranslation. 24 In its reasons, the Tribunal in reciting the appellant's answer to the reasons why he had left Iran, repeated the statement that 'one night anti-government rebels came to his door asking for food'. I do not consider that is a finding of fact; rather it is a recitation of the passage previously referred to in the interview. 25 In the Tribunal's reasons reciting the Departmental interview with the appellant on 5 March 2001 a sentence appears to the effect that the appellant 'had fed smugglers who had come to his home in the village one night in March 2000'. That was a reference to smugglers to which the delegate made reference. 26 The appellant was asked by the Tribunal why he had not mentioned the deaths of his father and brothers at the hands of the Iranians until a second interview with Departmental officers. The Tribunal expressed its concern that such an important issue was not mentioned at his arrival interview. 27 Under the heading 'Findings and reasons' the Tribunal stated: 'The Tribunal was not impressed with the Applicant as a witness of truth. He was not an impressive witness in giving evidence before the Tribunal. He sought on occasions to lead the Tribunal quickly away from issues on which he clearly had difficulty providing convincing explanations. He was also generally unsatisfactory in testifying about the circumstances that he claims led to him departing Iran as a fugitive, particularly his choice of exit point from Iran. He was hesitant and unconvincing in answering straightforward questions about his and his family's involvement with political dissidents and with the security forces.' 28 Subsequently in its reasons the Tribunal stated: 'In respect to the Applicant's arrivals interview dated 13 November 2000 to which his adviser referred in the preceding paragraph, the Applicant stated at that interview his reason for leaving Iran was the dilemma in which he was placed after the Ettela'at assaulted him for feeding "rebels", whom he clarified in evidence before the Tribunal to mean "criminals, including drug smugglers" and not the incorrectly interpreted or incorrectly recorded word "rebels". His predicament was stated thus in his interview that he: "Promised Ettela'at that he wouldn't help the rebels anymore. But if he refused to help the rebels they could kidnap his family members. He refused to help Ettela'at to kill the rebels. Then he left for Teheran, then Australia."' 29 The Tribunal then continued: 'The Tribunal discussed with the Applicant at length during the hearing (see pages 13 and 14 above) why he provided at that interview an apparently different basis for his claims for protection, especially in respect of his failure to mention the deaths of his father and two brothers and that the authorities were actively searching for him. The Tribunal accepts that the Applicant was stressed and depressed about his situation when he was first interviewed by the department but cannot accept his several explanations for omitting to mention such key issues which are the present foundation of his claimed fear of persecution. Reasons he provided for not mentioning these details were "for the sake of my mother and the children of my brothers". He also stated he was afraid to mention the deaths of his relatives because Australian authorities would imprison him. On being asked by the Tribunal why he did not at least have his family composition record accurately recorded during that interview to reflect that Abolfazl, one brother, was deceased, he replied that he told the interviewer that Abolfazl was dead but did not mention the circumstances of his death. The Tribunal finds these and the other explanations he provided to be thoroughly unconvincing and rejects them.' 30 In my opinion the second of the passages quoted above constitutes an acceptance by the Tribunal of the fact of mistranslation. It was submitted for the appellant that the Tribunal had simply stated the fact of mistranslation but had not formed its mind in relation to it. I do not accept that submission. In my view the Tribunal was clearly stating it was aware of the translation. Even if it did not find, as a matter of fact, that mistranslation had occurred it accepted in this passage that the interpretation given in the record of the appellant's interview was incorrect as claimed by the appellant and had been clarified in the appellant's evidence. 31 In relation to the third passage, it was contended that the word 'especially' appearing in the first sentence indicated that the words preceding it were referable to matters other than the deaths of the appellant's father and two brothers. However, reference back to pp 13 and 14 as referred to in that sentence shows that not to be the case. Certainly it does not show that the first part of the sentence should be read as referable to any adverse conclusions being drawn in relation to the appellant because of any change from the description of 'anti-government rebels' to 'criminals, including drug smugglers'. Indeed, there is no basis for concluding the Tribunal drew any such adverse conclusion (as the delegate seems to have done). 32 As examination of the above passages read in their entirety demonstrates there were other matters upon which the Tribunal based its conclusions concerning the appellant's lack of credibility. The first passage above demonstrates that in its terms. The matters arising in relation to the deaths of the appellant's father and two brothers played a particularly significant part but they were not alone in determining that credibility. However, there is nothing upon which to conclude that the mistranslation, accepted by the Tribunal, was among these. 33 In relation to the reasons of the Federal Magistrate, reference was made to the second paragraph of those reasons in which he has adopted as background facts certain matters set out in the respondent's submissions before him. That included a repetition of the terms of the appellant's arrival interview utilising the description of 'anti-government rebels'. It is submitted for the appellant that the Federal Magistrate was clearly, therefore, misled by the fact of the mistranslation. However, as already stated, the present issue of procedural fairness was not one of the five issues raised before the Federal Magistrate. The adoption of the background facts was not made in the context of any contest to the meaning of the description of 'anti-government rebels' before him. 34 Viewed against this background it is clear that the allegation of breach of natural justice made for the appellant does not identify any way in which the alleged breach is said to have affected the decision of the Tribunal. 35 The appellant says the Tribunal did not listen to the tape to see that there had been a mistake in the translation of the word 'ashari'. It is not necessary to determine whether this allegation is correct. The Tribunal accepted as part of its statement of Findings and Reasons, that the interpretation given in the record of the appellant's interview was incorrect as claimed by the appellant, and had been clarified in the appellant's evidence. 36 The appellant does not seek to make out a case that he was deprived of an opportunity to put any further information or submissions to the Tribunal, or that he did, or failed to do, anything, because of any belief or understanding that arose from the comment by the Tribunal member that he would listen to the tape to clarify any issue of the words used. Nor can the appellant point to any adverse finding or inference which arose from the Tribunal member not listening to the tape: cf Re Minister for Immigration & Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 511, at [36]; at 527-528, at [105]-[106]; at 531, at [122]; at 539, at [148]-[149]. 37 In short, the appellant can point to no unfairness arising from the failure of the Tribunal member to listen to the tape (if that is what happened). The situation is similar to that discussed by Gleeson CJ in Lam at [24]-[25]: 'The applicant rests his case upon the proposition that, if an administrative decision-maker states to a person affected an intention to take a certain procedural step, and fails to do so without warning the person affected of the change of intention, then the result is procedural unfairness warranting certiorari and prohibition. Such a proposition is far too broad. There are undoubtedly circumstances in which the failure of an administrative decision-maker to adhere to a statement of intention as to the procedure to be followed will result in unfairness and will justify judicial intervention to quash the decision, but for the present applicant to succeed it would be necessary to conclude that such a result will follow in all circumstances. That cannot be correct. To begin with, it overlooks the discretionary nature of the remedies of certiorari and prohibition. And, in any event, it requires the concept of legitimate expectation to carry more weight than it will bear. If such a proposition were accepted, it would elevate judicial review of administrative action to a level of high and arid technicality.' See also, McHugh and Gummow JJ at [103]-[104]. Conclusion 38 For these reasons the appeal was dismissed with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 19 December 2003 Pro Bono Counsel for the Appellant: Mr JF Gormly Pro Bono Solicitor for the Appellant: Raymond Clive Balding Counsel for the Respondent: Mr JD Allanson Solicitor for the Respondent: Blake Dawson Waldron Dates of Hearing: 4 December 2002 and 15 December 2003 Date of Judgment: 15 December 2003