Applicant "A" v Minister for Immigration & Multicultural Affairs

[1997] FCA 294

C A T C H W O R D S

IMMIGRATION - refugee status - protection visa - well-founded fear of persecution - whether Tribunal’s decision involved error of law or other reviewable error - whether incorrect interpretation of applicable law - whether incorrect application of the law to the facts as found by the Tribunal - Tribunal decided application on the basis that it disbelieved almost all the applicant’s claims - no ground of review demonstrated.

Migration Act 1958 (Cth) s.476(1)(e), 476(2)(b), 476(3)(e)

Chan Yee Kin v. Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379
Wu Shan Liang v. Minister for Immigration & Ethnic Affairs (1995) 130 ALR 367
Minister for Immigration & Ethnic Affairs v. Wu Shan Liang (1996) 136 ALR 481
Eshetu v. Minister for Immigration & Ethnic Affairs (1997) 142 ALR 474
Reza Barzideh v. Minister for Immigration & Ethnic Affairs, (unreported, Hill J, 12 February 1997, Judgment No. 51 of 1997)
Chikonga v. Minister for Immigration & Multicultural Affairs, (unreported, R.D.Nicholson J, 6 March 1997, Judgment No. 132 of 1997). 
Ming Yan v. Refugee Review Tribunal (Application No. NG 035 of 1996)

APPLICANT “A” v. MINISTER FOR IMMIGRATION &
MULTICULTURAL AFFAIRS
No. WAG 105 of 1996

CARR J
PERTH
23 APRIL 1997

IN THE FEDERAL COURT           )
OF AUSTRALIA                  )
WESTERN AUSTRALIA     )  No. WAG 105 of 1996          
DISTRICT REGISTRY        )
GENERAL DIVISION        )

B E T W E E N :  APPLICANT “A”

Applicant
  - and -

MINISTER FOR IMMIGRATION &
  MULTICULTURAL AFFAIRS

Respondent

CORAM:      CARR J
DATE:          23 APRIL 1997
PLACE:        PERTH

MINUTE OF ORDERS

THE COURT ORDERS THAT:

1.        The application for review be dismissed.

2.        The applicant pay the respondent’s costs.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT )
OF AUSTRALIA                  )
WESTERN AUSTRALIA     )  No. WAG 105 of 1996          
DISTRICT REGISTRY        )
GENERAL DIVISION        )

B E T W E E N :  APPLICANT “A”

Applicant
  - and -

MINISTER FOR IMMIGRATION &
  MULTICULTURAL AFFAIRS

Respondent

CORAM:      CARR J
DATE:          23 APRIL 1997
PLACE:        PERTH[MJ1]

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”), made on 21 June 1996, that the applicant was not a person to whom Australia had protection obligations under the 1951 Convention relating to the Status of Refugees (“the Convention”). As a consequence of that decision the Tribunal affirmed a decision by a delegate of the respondent, made on 31 October 1995, to refuse the grant of a protection visa for the same reason. When the applicant lodged his application for an order of review, on 19 July 1996, he named the Tribunal as respondent to the application. On 27 August 1996 an order was made, by consent, that the Minister for Immigration & Multicultural Affairs be substituted for the Tribunal as the respondent. By that time, the period limited by s.478(1)(b) of the Migration Act 1958 (Cth) (“the Act”) for lodging an application for review had expired. On 18 February 1997 the respondent filed a Notice of Objection to Competency. This was at a fairly late stage in the proceedings. The objection to the jurisdiction was based on an assertion that the respondent was not a party to the application lodged with the Court as required by s.480 of the Act. There have been some recent judgments in this Court to the effect that in the above circumstances the application was incompetent and should be dismissed - see, for example, Reza Barzideh v. Minister for Immigration & Ethnic Affairs, (unreported, Hill J, 12 February 1997, Judgment No. 51 of 1997) and Chikonga v. Minister for Immigration & Multicultural Affairs, (unreported, R.D.Nicholson J, 6 March 1997, Judgment No. 132 of 1997).  On 25 March 1997, Burchett J in Ming Yan v. Refugee Review Tribunal (Application No. NG 035 of 1996) stated a case for determination by a Full Court of this Court. One of the seven questions referred to the Full Court is whether s.480 of the Act imposes a mandatory obligation on an applicant to name the Minister for Immigration & Multicultural Affairs as respondent to the application. At the respondent’s request, I reserved judgment in this matter on the basis that if I found in favour of the applicant in respect of his application for review, the matter would be further adjourned to await the outcome of the Full Court’s decision in Ming Yan.

Factual Background

The applicant was born in Iran in 1961.  He is an Iranian citizen and, until he came to Australia, had never left Iran.  On 11 June 1995 the applicant arrived in Australia on a visitor’s visa and on 24 July 1995 lodged with the Department of Immigration & Ethnic Affairs an application for a protection visa.  By that document, he claimed recognition as a refugee.

The Applicant’s Claims
The applicant claimed that if he were required to return to Iran he would be persecuted for an imputed political opinion, namely, support for the Mujahideen.  He claimed that he would be branded as a traitor and be suspected of acting as a courier for the Mujahideen.

The applicant completed school in 1982.  He claimed that he then went into hiding for five years to evade military service.  This was because he did not support the war with Iraq or the Islamic Government of Iran.  He supported the Mujahideen, though he was not actually a member.  In 1986 the applicant was caught by the Revolutionary Guards and was obliged to undertake military service.  This lasted from October 1986 to January 1989.  He claimed that during this period he was locked up for seven days while exercises were taking place near the border and it was suspected that he might have some connection with the Mujahideen.  After his army service was over, the applicant was employed as an accountant in a business owned by his cousin.  In 1992 the applicant claims that he was arrested (by a Revoluntionary Guard) while reading a Mujahideen newspaper.  He claims that he was detained for two days and given 40 lashes.  Thereafter, so the applicant claimed, he was kept under observation and was unable to get a government job.  The applicant claimed that he had difficulty obtaining a passport, which took him a year, and that he had to pay a bribe for that passport.  The applicant had applied, in 1990, to migrate to Australia where several of his family members live.  His application was unsuccessful.  In July and again in August 1994, after his Iranian passport had been extended, he applied for visitor’s visas to Australia, with a sponsorship guarantee from his brother.  The Immigration Department considered that there was a high risk that the applicant would overstay.  The applicant’s brother applied to the Immigration Review Tribunal for a review of that refusal.  That application was successful.  The Immigration Review Tribunal considered that the applicant had genuine reasons for visiting Australia, that there was “very little likelihood that he will remain in Australia at the expiry of his authorised stay” and that he would be adequately supported by his brother.  His visa was accordingly granted on 24 April 1995. 

The Tribunal’s Findings
The Tribunal stated that there were:

“a number of serious credibility problems with the present application. In fact, the application may be decided on the basis of credibility”. 

First, the Tribunal referred to the fact that the applicant had shown himself to be ready to deceive the Australian immigration authorities and the Immigration Review Tribunal.  But the Tribunal then observed:

“This could not legitimately count against him if he were genuinely desperate for his own safety; however, it must be seen in the context of other credibility problems, and of course it must raise a certain scepticism about his credibility in general.”

The Tribunal then turned to the applicant’s claims to have been in hiding from 1982 to 1987.  It noted that other information provided by the applicant showed that he was working for the same employer in Tehran from 1982 until he left the country (except during his military service) and had also been living at the same address in Tehran from 1978 until his departure.  The Tribunal had asked the applicant about this.  The applicant responded that he was in hiding “in the sense that he did not go out in public except between his home and his work”.  The Tribunal found that this was not a plausible explanation of the phrase “in hiding” and, furthermore, that it was not credible that the authorities were unable to find the applicant if they had wished to do so in those circumstances.  The Tribunal also disbelieved the applicant’s main claim of having a pro-Mujahideen profile.  The Tribunal said that if this were true, it was impossible to see how he could have remained free from official detection over such a long period of time when he lived and worked at the same respective addresses.

The Tribunal then considered the applicant’s claim that due to his adverse political profile he would be unable to obtain a government job on his return to Iran.  His cousin’s firm had closed down two weeks before he came to Australia.  The Tribunal found “the alleged coincidence [closure of the firm and the applicant’s departure for Australia] most implausible”.  The applicant claimed that his house was being watched and that he was often followed when he left that house.  The Tribunal did not believe this.  It said that it was unable to see how it would have been possible for the applicant, in those circumstances, to leave Iran.  The Tribunal recognised that the fact that a person is able to obtain a passport and leave Iran through Tehran airport is not conclusive proof that he or she is not wanted by the authorities.  However, it said that it was “a factor to be taken into account”.  In the circumstances of the applicant’s case the Tribunal said that there was ample time for the authorities to put his name on a black list if they had ever had such an intention.  On this matter the Tribunal concluded:

“Taking all these things into account, I do not think his ability to leave is conclusive against him, but I think it must count against his case to a very significant extent indeed.”

The Tribunal then referred to the following matters:

.the fact that the applicant was able to obtain, in April 1995, an official certificate from the Iranian authorities of the fact that he had completed his schooling.  The Tribunal noted that “it is difficult to see how a person wanted by the authorities could obtain such a certificate”;

.the fact that the applicant had attended before an official English translator at the Iranian Ministry of Justice to obtain a translation of a certificate from his employer, issued on 24 January 1995, with the translation done on the following day.  The Tribunal said “I am unable to believe that a person with a serious adverse political profile would choose such a person to translate a document for him.  I might add that the certificate, of course, gave the name, address and telephone number of his employer”.  The Tribunal rejected the applicant’s explanation for going to the Ministry of Justice for the translation;

.certain circumstances surrounding the visit from Iran to Australia of the applicant’s mother and his two brothers, and their subsequent return;

.the fact that the applicant gave, as the first reason mentioned for leaving Iran, the answer “Because the standard of living is not good enough especially for a person who does not support the Islamic Government which is my main reason ...”.

The Tribunal noted that it should make allowance for human error, translation difficulties and nervousness and that it should extend the benefit of the doubt in many cases in recognition that conclusive proof of an applicant’s case is rarely possible.  The Tribunal concluded its reasons in the following terms:

“However, in the present case there are too many credibility problems for me to be able to accept more than the bare minimum of the applicant’s account.  I am prepared to extend the benefit of the doubt to the point of accepting that he was punished in 1992 for being found reading Mujahideen literature.  It is not credible, however, that there were any difficulties for him after this, or that he remained of interest to the government of Iran.  He sought to maintain, on the one hand, that the government was seeking him for Mujahideen sympathies; on the other, that he was under surveillance yet the authorities did nothing about him during that time, but decided to do so after he had somehow slipped through that surveillance and gone overseas.

There is no independent evidence whatsoever to indicate or even suggest that the applicant has at any time had any problems with the Iranian authorities.  All the documents indicate a man who went through normal education and employment and who left the country in a perfectly ordinary manner.  They also indicate that the authorities were quite aware as with any ordinary Iranian citizen of his address and place of work and could readily have apprehended him at any time.  No reason is apparent why, after living in Iran for many years without official attention, the applicant should suddenly have discovered a need to flee the country.  Nor is any reason apparent why the authorities, having left him free for so long, should suddenly wish to persecute him.

Without considering the issue of whether the Iranian Government might indeed persecute a person for having made an application for refugee status in a foreign country, I find that there is no evidence to suggest that the Iranian Government could be aware of the applicant’s application.  Such applications are treated in strict confidence by both the Department and the Tribunal, and there is nothing to indicate that this confidence could have been breached in the present case.  Hence, I consider that there is no real chance that the applicant could be persecuted for this reason.

I have taken note of the views of Dr Razavi [who gave evidence to the Tribunal] and of the information which is publicly available concerning human rights abuses by the Government of Iran.  This information is not disputed; it is clear that the Iranian Government’s human rights record is extremely poor.  However, this does not establish that the applicant is at risk of persecution.  Owing to the numerous credibility problems with his application, I do not accept that he falls into any group which is at risk of persecution in Iran now or in the foreseeable future.

CONCLUSION

The Tribunal finds that the applicant does not face a real chance of persecution in Iran for any Convention reason.  He does not have a well-founded fear of persecution, and is not a refugee.  The Tribunal affirms the decision of the delegate.”

Applications to adduce further evidence

The applicant sought to tender two affidavits sworn shortly before the hearing in this Court. The first affidavit was from Dr Razavi (who is mentioned above). The second affidavit was sworn by a Mr. Massali. The respondent objected to the tender of those affidavits. I read the documents. It was apparent that they were directed purely to matters of fact which may well have been relevant to the Tribunal’s decision. However, the contents of those documents were not, in my opinion, relevant to any of the grounds of review contained in s.476 of the Act. Accordingly, I refused to admit them into evidence.

The applicant also sought to tender, at the hearing, two pages from “The West Australian” newspaper as published on 12 and 14 April 1997 respectively.  Those pages contained articles referring to a well-publicised court decision in Germany that Iranian government officials, at the highest level, had participated in an act of terrorism in Europe.  The articles also reported reaction to that decision both in Germany and in Tehran.  There was also an article referring to the recall of the Australian Ambassador from Iran.  Those newspaper articles (particularly when read with the affidavits referred to above, which to some extent dealt with the applicant’s activities since he arrived in Australia) would also have been relevant to a Tribunal deciding whether the applicant faced a real chance of persecution in Iran for a Convention reason.  The activities described in those affidavits might well have formed the basis for a claim by the applicant that he had become a refugee sur place since arriving in Australia. However, (apart from the fact that the applicant has made an application for refugee status, a subject to which I return below) that was not the basis upon which the applicant made his claims before the Tribunal. Once again, I considered that for the reasons stated above, the contents of those two newspaper pages were not relevant to the matter before the Court, namely review of the Tribunal’s decision on one or more of the grounds contained in s.476 of the Act. For those reasons, I refused to admit the newspaper pages into evidence.

The Statutory Framework

The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations (“the Regulations”): see s.31(3) of the Act and r.2.03 of the Regulations. One of those criteria is that at the time of decision the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention: cl.866.221 of Schedule 2 of the Regulations. “Refugees Convention” is defined by cl.866.111 of Schedule 2 of the Regulations to mean the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. Article 1A(2) of the Convention, as amended, defines a refugee as any person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; ...”

The Grounds of the Application to this Court

The applicant appeared in person and does not speak English. I gave the applicant’s brother leave to address the Court on his behalf. The applicant also made some submissions through an interpreter. Although the applicant signed his application and filed it under his name, it would appear that the document was drafted by someone who had some legal expertise. Even so, the draftsperson does not appear to have made any substantial effort to have regard to the provisions of s.476 of the Act. The following is a summary of what I understand, from the application, are the applicant’s complaints about the Tribunal’s decision:

1.That the Tribunal failed to take into account fairly and to have due regard to Article 1A(2) of the Refugees Convention.

2.That the Tribunal failed to consider cumulatively the applicant’s past circumstances between 1982 to 1989, and in 1992, in determining whether there was a real chance of persecution on return to Iran.

3.The Tribunal failed to apply the correct standard of proof objectively to the applicant’s claim of having a well-founded fear of persecution for Convention reasons.

4.The Tribunal failed to proceed to consider the case on its merits. 

[The application then set out the factual circumstances of the applicant’s claims and resumed the list of complaints concerning the Tribunal, as follows hereunder.]

5.The Tribunal failed to consider whether the applicant’s hiding for five years to escape “forceful” military training, and subsequent arrest and torture, indicated that there was a real chance of his persecution.

6.The Tribunal erred by making “unreasonable findings”, and also in application of the correct test whether there was a ‘real chance’ which involved the evaluation of the possibilities, and speculation about the future having regard to past events, “which is not consistent with the reasons for judgment of Beaumont, Einfeld and Foster JJ in Guo Wei Rong v. Minister for Immigration & Ethnic Affairs & Anor (135 ALR 421)”; and

7.The Tribunal should have determined that the applicant’s past adverse treatment had been persecution for Convention reasons, and that on the balance of probabilities the applicant’s fear of persecution on Convention grounds was well-founded.

Bearing in mind the provisions of s.476 of the Act, I have taken the applicant’s complaints as being, in essence, that the Tribunal’s decision involved an error of law within the meaning of that expression in s.476(1)(e). The error of law which I have assumed the applicant to be alleging is either an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal whether or not the error appears on the record of the decision. Otherwise, I do not consider that the balance of the complaints made by the applicant are open to him. They boil down to allegations that the Tribunal either exercised its power unreasonably (in the administrative law sense) or failed to take relevant considerations into account - grounds specifically excluded by s.476(2)(b) and s.476(3)(e) of the Act, respectively. In any event, in relation to the alleged failure to take into account relevant considerations, I accept the respondent’s submission that the Tribunal did consider these matters. It considered the applicant’s claim that he had been in hiding for five years and rejected it, because it did not believe him. It considered the incident arising out of the applicant reading the Mujahideen newspaper and extended to the applicant the benefit of its doubt about that matter. That incident occurred in 1992 and the Tribunal refused to believe that the applicant remained of any interest to the Iranian Government after that time.

Whether the Tribunal applied the ‘real chance’ test
The reference to a ‘real chance’ of persecution is a reference to the test explained by the High Court of Australia in Chan Yee Kin v. Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 and applied in numerous subsequent cases.

The Tribunal devoted some five and a half pages of its reasons to setting out its understanding of the meaning of the term ‘refugee’.  It recognised (by express reference to McHugh J’s judgment in Chan) that a fear of persecution may be well-founded even though there is only a 10% chance of it occurring. 

The Tribunal’s decision was based essentially upon its disbelief of the applicant’s major claims.  In other words, the matter turned very much upon credibility.  As noted above, the Tribunal held that there were too many credibility problems for it to be able to accept more than the bare minimum of the applicant’s account.  The Tribunal expressly found that the applicant does not have a real chance of persecution in Iran for any Convention reason.

As a Full Court of this Court said in Wu Shan Liang v. Minister for Immigration & Ethnic Affairs (1995) 130 ALR 367 at p.378:

“The delegate was thus aware of the test she had to apply.  Her reasons are entitled to a beneficial construction.  We should not take the view that she did not apply the correct test unless this appears clearly from what she has written.”

I do not consider that the applicant has made good his complaint that the Tribunal failed to apply the ‘real chance of persecution’ test.  Nor, on reading and re-reading the Tribunal’s reasons for decision, am I able to identify an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal.  As I have said, the applicant was unsuccessful before the Tribunal principally because he was disbelieved.  There was, in my view, more than sufficient evidence before the Tribunal to justify it in coming to its decision to disbelieve the applicant.  Much of that evidence came from the applicant himself.  On the facts as found by the Tribunal, the 1992 incident was accepted as having occurred, but the rest of the applicant’s claims were rejected.  I do not consider that the Tribunal incorrectly applied the law to the facts as so found by it.

I was concerned, initially, by the Tribunal’s reference to there being:

“... no independent evidence whatsoever to indicate or even suggest that the applicant has at any time had any problems with the Iranian authorities.”

As Hill J explained in Eshetu v. Minister for Immigration & Ethnic Affairs & Anor (1997) 142 ALR 474 at p.485

“... the tribunal must not approach its task of merits review on the basis that it will not accept what an applicant for refugee status says unless there is some independent corroboration. To do so would involve a gross error of law. It would entitle an applicant, in my view, to have the Tribunal’s decision set aside on the grounds either of s.476(1)(a) or perhaps s.476(1)(e).”

However, when reading the Tribunal’s reasoning as a whole, it is clear that its decision to disbelieve the applicant had been made earlier - see its reference to there being “too many credibility problems”.  I see the reference to “no independent evidence” by the Tribunal as being an additional, but not essential, reason to justify its already-reached decision to disbelieve the applicant.  As the High Court emphasised in Minister for Immigration & Ethnic Affairs v. Wu Shan Liang (1996) 136 ALR 481 at p.491:

“... the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.”

In my view, the Tribunal’s decision to disbelieve the applicant was not based on the absence of any independent evidence of problems with the Iranian authorities, but rather upon the inconsistencies to which the Tribunal earlier referred.

I am also concerned that the applicant might face persecution for having made an application for refugee status. The Tribunal rejected this on the basis that there was no evidence to suggest that the Iranian government could be aware of the application, because such applications are treated in strict confidence. The same does not apply in respect of proceedings in this Court, unless special orders are made. The applicant did not apply for confidentiality. However, generally speaking he has been unrepresented and does not speak English. In those circumstances, I consider that it would be appropriate for his name to be deleted from the title to these proceedings and that, instead, he be described henceforth as “Applicant A”. There will also be a confidentiality order restricting access to the Court file. I have not overlooked the applicant’s submission that it is well-known in the local expatriate Iranian community that he has engaged in the activities described in Dr Razavi’s and Mr Massali’s affidavits, that he has applied for refugee status and that the Iranian authorities have agents in Australia who report such matters to them. There is a limit to what this Court can do in such circumstances. Since the Tribunal gave its decision, there have been major developments in the relationships between Iran on the one hand and other countries, including Australia, on the other hand. I have touched on that matter earlier in my reasons. There may well be a basis either for the exercise of the Minister’s discretion or (if permitted by the statutory regime) the re-opening of the matter at a departmental level. There is some evidence that the applicant’s Iranian passport has expired. In those circumstances if he were to apply for a re-grant of such a passport and were then deported to Iran or were deported to Iran without such a document then, given the current diplomatic situation, he might well attract some official attention from the Iranian authorities. But those are not matters for this Court when exercising its functions of review under Part 8 of the Act. In my view, Parliament has seen fit to make that quite clear.

CONCLUSIONS

For the foregoing reasons, the application will be dismissed with costs.  In those circumstances, it is not necessary to consider the respondent’s Objection to Competency.

I certify that this and the preceding fifteen (15) pages are a true copy of the Reasons for Judgment of Justice Carr.

Associate:

Date:              23 April 1997

The applicant appeared in person

Counsel for the Respondent:             Mr P Macliver
          Solicitors for the Respondent:            Australian Government Solicitor

Date of Hearing:  15 April 1997
          Date of Judgment:  23 April 1997

[MJ1]