SRCB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1064

FEDERAL COURT OF AUSTRALIA

SRCB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1064

MIGRATION – procedural fairness – bias – scope of review – where RRT decision challenged on merits – where applicant's claims failed because the RRT did not believe him.

Migration Act 1958 (Cth)

Minister for Immigration and Multicultural and Indigenous Affairs v Indatissa [2001] FCA 181 cited Attorney-General (NSW) v Quin (1990) 170 CLR 1 applied Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 applied Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 178 ALR 421 cited Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425 cited SRCB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SAD 616 of 2003 LANDER J 19 AUGUST 2004 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 616 OF 2003

BETWEEN: SRCB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE OF ORDER: 19 AUGUST 2004

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SAD 616 OF 2003

BETWEEN: SRCB

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LANDER J

DATE: 19 AUGUST 2004

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for judicial review of a decision of the Refugee Review Tribunal (RRT) made on 20 August 2003. 2 The applicant is a citizen of Iran. He arrived in Australia in December 2000. On 21 January 2001 he applied to the Minister for Immigration and Multicultural Affairs (the Minister) for a protection (Class XA) visa. On 5 February 2001 a delegate of the Minister refused the application. On 6 February 2001 the applicant applied to the RRT for a review of the delegate's decision. On 22 March 2001 the RRT affirmed the delegate's decision. 3 The applicant sought a review of that decision in the Federal Court. On 1 August 2001 a judge of the Federal Court dismissed the application for review. However, on 10 July 2002 the Full Court of the Federal Court upheld an appeal from the primary judge and set aside the judge's orders. The Full Court also ordered that the decision of the RRT be set aside and that the matter be remitted to the RRT (differently constituted) for re-determination. The Minister applied to the High Court for special leave to appeal from the decision of the Full Court of the Federal Court but leave was refused on 11 April 2003. 4 On 20 August 2003 the RRT (differently constituted) affirmed the delegate's decision not to grant a protection visa. 5 On 23 March 2004 the applicant filed amended grounds in support of his claim for the issue of the constitutional writs. Those grounds are: 1. The Tribunal acted without, or in excess of jurisdiction, in that it failed to deal with the applicant's case in that: PARTICULARS (a) The Tribunal failed to consider the applicants' [sic] express claims that he was at risk of persecution because of his political opinion, namely anti "Islamic Republic Government". The Tribunal therefore failed to consider "what if it was wrong". 2. That the Applicant was denied procedural fairness in that the Refugee Review Tribunal decision was made with an apprehension of bias. PARTICULARS (a) The Tribunal member failed to take into account that the interpreter had laughed at the Applicant on two occasions during the hearing which resulted in the Applicant losing his temper. The Tribunal member failed to properly exercise his duty in ensuring that the situation was one where the Applicant felt he was involved in a fair and proper process. It was the responsibility of the Tribunal member to either abort the hearing, or arrange for an alternative interpreter to attend. 3. The Refugee Review Tribunal erred in law in failing to deal with, as required by law, integers of the Applicant's claims. 4. It is claimed that the Tribunal failed to review and consider the application for the purposes of ss.47, 65 and 414 of the Migration Act 1958.' 6 On 5 April 2004 the applicant also filed an affidavit of Father Paul Bourke, who was present during the RRT proceedings on 14 July 2003. 7 Father Bourke deposed to the applicant's conduct when the applicant believed that the interpreter, who was present during the hearing, laughed at him. Father Bourke said that the RRT member repeatedly said to the applicant that 'we are not laughing at you' but that the applicant still became quite upset. 8 Father Bourke also deposed to the applicant's reaction arising from what the applicant believed to have been a misinterpretation by the interpreter of what he said. The applicant said that he said 'Political Refugee', although the interpreter translated that as 'Political Prisoner'. 9 Father Bourke said that the applicant became visibly upset on both occasions. 10 The applicant also filed an affidavit of Sister Claudette Cusack, a religious sister in the Order of the Sisters of Mercy, who was also present during the RRT proceedings. Her evidence was to the same effect as that of Father Paul Bourke. 11 The RRT hearing was taped. At the hearing before me, the applicant tendered a transcription of the tape. I will later in these reasons refer to the proceedings before the RRT in more detail. 12 Shortly before the hearing of this matter, the applicant filed yet another amended application in which he stated his grounds to be: '1. The RRT Member, by unreasonably rejecting all parts of my claim to be a refugee under the Refugee Convention, unjustly asserting I was fabricating every aspect of my story and my witnesses had colluded with me solely to embellish my claims, has unjustly excluded from consideration the totality of my account. At the very least the way in which the hearing was conducted gave rise to a reasonable apprehension of bias. 2. The RRT Member has misunderstood the function of a second RRT hearing to accept additional evidence which more adequately addresses those findings of the primary decision-maker or first RRT which led to me being denied a protection visa. 3. The RRT Member has misunderstood the nature of new information in describing it in several places as a change of inconsistency in the evidence rather than further detail to corroborate my account. By inaccurately describing these details as changes or inconsistencies rather than as additional information, the RRT came to a wrong conclusion that my account was therefore not credible and that the most important aspects of it were fabrications. 4. The RRT denied me natural justice when it failed to apply benefit of the doubt for potential high risk situations and relying on out-of-date country information when up-to-date country information was available. This contributed to the RRT failing to find I had a well founded fear of persecution as prescribed in the Refugee Convention and Migration Act (Cth) 1958 and that I would face almost certain persecution if my claim for protection was refused and I was returned to my country. 5. The RRT Member denied me natural justice because he acted more like a prosecutor and failed in some instances to properly fulfil the RRT's inquisitorial responsibilities by consistently using additional information to make adverse findings, and, at other times, by unreasonably defending the failure of the first decision-maker to ask crucial questions. 6. The RRT Member ignored relevant information and came to wrong conclusions.' 13 At the hearing before me, the applicant submitted a number of documents, apart from the transcript to which I have already referred. He submitted references from two priests and a religious sister. The tender of these documents was to prove that he was a Christian. 14 The applicant made his submissions through an interpreter. However, it was clear to me that the applicant is an intelligent and articulate man. He well understood the proceedings before me. He put his submissions shortly and appropriately. 15 The applicant was born on 8 September 1975 in Tehran. He spent his early life in Shahin Shahr, near Isfahan. He received a tertiary education and completed a degree in computing in 1997. Between 1997 and 2000 an electrical company employed him as a technician. 16 The applicant said that whilst he was employed as a technician he applied for a job with HESA, which is a government company which manufactures helicopters and other aircraft. 17 It is that job interview which forms the basis for the applicant's claim that if he were returned to Iran he fears he would be persecuted because of his political opinions. 18 The applicant has been called upon on a number of occasions to describe exactly what happened at that interview. The RRT noted that his account of that interview had changed over the course of the processing of his application for a protection visa. 19 However, the basis of the applicant's claim has not changed. He said that at that interview he made disparaging remarks about the religious and political leaders in Iran, as a result of which he became angry and so also did the interviewer. He claims that at the end of the interview two persons grabbed him. 20 The applicant claims that he was arrested, bashed and beaten. He was put in a cell for a period of about 10 days. 21 The applicant said that eventually he escaped by bribing one of the guards. The RRT noted that, like his account of the interview, his account of the escape had varied from time to time. 22 The applicant's case was that after he had escaped he hid in different cities in Iran. Whilst in hiding, he said that he heard that he had been sentenced to be executed. When he heard that news, he fled Iran. 23 Again, in relation to this topic, the RRT noted various inconsistencies in his account to the delegate and to the previous RRT. 24 In accordance with its obligations under s 424A of the Migration Act 1958 (Cth) (the Act), the RRT wrote to the applicant pointing out the inconsistencies in his evidence and in his previous accounts of events. 25 The applicant responded to the RRT on 25 July 2003 stating that the inconsistencies arose out of misunderstandings during his first couple of interviews with the case officers. 26 The applicant said that after he had escaped from custody his family home was raided and that 'communist' literature belonging to the applicant had been found during that raid. 27 The applicant told the RRT that when his home had been searched the searchers found pictures of the Shah, the Shah's wife and the Crown Prince. The literature which had been found had 'not been monarchist but communist'. 28 The applicant claimed that he left Iran illegally, crossing into Pakistan with the assistance of a people smuggler, Haji Jomeh. He had previously told the first RRT that his illegal departure had been made in the company of a maternal uncle of a friend of his brother. 29 The applicant asked the RRT to take evidence from Mr Ramezani, who said that he had travelled with the applicant from Isfahan to Kerman, and from there to Zahedan where they had been met by Haji Jomeh. They then crossed the Iran/Pakistan border at night. 30 The applicant said that because of his illegal departure from Iran, and because he had applied for refugee status in Australia, he would be likely to face mistreatment, which could be categorised as persecutory, if he were to return to Iran. 31 The applicant also asserted that he had been persecuted in Iran because of his political opinion and that he would be subject to physical mistreatment if he were to return to Iran. 32 In its reasons, the RRT addressed the inconsistencies in the applicant's accounts on the topics to which I have referred. 33 The RRT said: 'As Gummow and Hayne JJ remarked in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at paragraph [191], "the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising". However in the present case I consider that the Applicant's embellishment of his claims has been so extensive as to lead to the conclusion that he is a person who will say anything if he believes that it will be to his advantage, regardless of the truth. I do not accept the Applicant as a witness of truth. Moreover I do not accept that his claims in their original form are credible. The Applicant says that he applied for a government job and that he knew that the job interview as an "ideology interview". He says that he wanted the job and that a permanent job was not easy to find. He nevertheless says that he lost his temper and started to shout and abuse the Supreme Leader, the Government and the people of the Government. It is very difficult to believe that the Applicant would have acted in the manner he has described. Furthermore, having supposedly escaped from custody and having been told, at least by his original account, that an order for his execution had been issued, the Applicant says that he remained in Iran for a further three and a half months, travelling around the country. As referred to above he says he did this because he wanted to see how serious his situation was and whether he had to leave the country or not. I do not accept that the Applicant's claimed actions are consistent with his claimed fears after he had supposedly escaped from custody and after he claims he had been told by his brother that his family's home had been raided and that either an order for his execution had been issued or his family feared that such an order would be issued. Having regard to the view I have formed of the Applicant's credibility, for the foregoing reasons, I do not accept that he attended a job interview with HESA in early July 2000, nor that at that interview he lost his temper and started to shout and to abuse the Supreme Leader, the Government and the people of the Government. I do not accept that he was arrested and bashed or beaten, nor do I accept his account of his escape from custody. I do not accept that his house was searched as he claims, nor that he was of any interest to the Iranian authorities at the time he left the country. I do not accept that an order for the Applicant's execution was issued in his absence, nor that there is any reason to believe that such an order has been issued. I do not accept that the local Basiji (paramilitary volunteer forces) have been harassing the Applicant's family nor that the Iranian authorities are looking for the Applicant.' 34 The RRT did not accept the evidence of the applicant's witness, Mr Ramezani. It was of the opinion that he had an interest in saying what he said because he was also an applicant for a protection visa and relied upon his own illegal departure. 35 The RRT found that there was no real chance that the applicant would be persecuted for a Convention reason if he were to return to Iran. 36 The RRT affirmed the decision of the delegate of the Minister not to grant him a protection visa. 37 The applicant's application failed because he was not believed. 38 The RRT did not accept that the applicant left Iran for the reasons which he stated. It did not accept that he had been subject to any persecution. It did not accept that he would be subject to any persecution if he were to return to Iran. 39 The applicant advanced for the first time on this application that he was an adherent of the Christian religion. While he had been accompanied by a priest and a nun at the hearing of the RRT, he had not previously claimed to be a Christian. I am not sure why it was that he wished to establish that fact on this application except, I suppose, to have this Court infer that, because he is a Christian, he would be subject to persecution if returned to Iran. As I say, that was never the case advanced to the delegate or to the RRT. Again, it would seem to be a shift in position by the applicant as he moved from delegate to Tribunal to Court. 40 In any event, the applicant's case before the RRT failed because the RRT did not believe the applicant. The RRT gave the applicant fair warning of the reasons why it might conclude that he was not entitled to a protection visa. On 21 July 2003 the RRT wrote to the applicant in accordance with the RRT's obligation under s 424A of the Act. In that letter, of some four pages, the RRT brought all of the matters of inconsistency, which it noted in its reasons, to the attention of the applicant seeking his comments. The applicant did reply but, clearly enough, the RRT was not convinced of the applicant's truthfulness. 41 The matters, which the applicant wishes to raise on this review, go to questions of findings of credibility and the merits generally. 42 The weight to be attributed to the evidence before the RRT is a matter for the RRT: Minister for Immigration and Multicultural and Indigenous Affairs v Indatissa [2001] FCA 181. This Court, on an application for judicial review, cannot undertake a merits review of the RRT decision: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 629 per Gleeson CJ and McHugh J. That disposes of grounds 2, 3, 4 and 6. 43 The applicant asserted that the RRT's decision in finding the numerous inconsistencies in the applicant's evidence showed, at the very least, a reasonable apprehension of bias on the part of the RRT: par 1 of the grounds of the applicant's amended application. I think, however, the applicant was asserting that the RRT was biased because the RRT had prejudged the issues. 44 In Minister for Immigration and Multicultural and Indigenous Affairs v Jia (2001) 178 ALR 421, Gleeson CJ and Gummow J said at [72]: 'The test which was applied both by French J and by the Full Court was orthodox. It accords with the decisions of this Court in Laws v Australian Broadcasting Tribunal and Johnson v Johnson. The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion.' 45 The transcript does not support a claim of prejudgment at all. More particularly, it does not support a claim that the member was so committed to a conclusion that the member's mind could not be altered whatever evidence or arguments were presented. 46 If the applicant's case is that the conduct of the RRT would support a claim of reasonable apprehension of bias, that contention also must be rejected. 47 The RRT's role is inquisitorial. As such, it has the obligation to test an applicant's evidence: Re Refugee Tribunal; Ex parte H (2001) 179 ALR 425. In this case, the RRT did no more than necessary to fulfil its function. In my opinion, a reasonable observer could not have formed the view that the RRT might not bring an impartial mind to the issues before the RRT. 48 Grounds 1 and 5 are not made out. 49 There is no hint that the applicant was denied procedural fairness or that the RRT was guilty of any jurisdictional error. 50 In my opinion, the application for a review must fail and the application must be dismissed. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.