CZBP v Minister for Immigration
[2014] FCCA 659
•4 April 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CZBP v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 659 |
| Catchwords: MIGRATION – Alleged bias against Tribunal member – decision of Tribunal affected by “illogicality” – matters of “credit” of applicant & sufficient evidence for the decision – assumptions by Tribunal of applicant’s knowledge of Penal Code of Iran – risk of older applicant being subject to large number of lashes because she was found to be an adulteress – responsibilities of Tribunal to make ‘obvious inquiry’ – the proper evaluative process and required level of satisfaction not found leading to miscarriage of the statutory task of the Tribunal – writs issued. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 36(2A), 415, 420(1) & (2)(a) & (b), 422B, 426, 426(3), 427, 427(1)(d) |
| Abebe v Commonwealth (1999) 197 CLR 510 VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1 Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law (Third Edition) (Oxford: Oxford University Press, 2007) J. Hunter, L. Pearson, M. San Roque, Z. Steel, “Asylum Adjudication, Mental Health and Credibility Evaluation,” (2103) 41 Federal Law Review 471 – 495 |
| Applicant: | CZBP |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 79 of 2012 |
| Judgment of: | Judge Neville |
| Hearing date: | 29 July 2013 |
| Date of Last Submission: | 17 March 2014 |
| Delivered at: | Canberra |
| Delivered on: | 4 April 2014 |
REPRESENTATION
| Counsel for the Applicant: |
| Solicitors for the Applicant: | Self Represented |
| Counsel for the Respondents: |
Solicitors for the Respondents: | Clayton Utz, Canberra |
ORDERS
The First Respondent be referred to as the “Minister for Immigration and Border Protection.”
A writ of certorari issue to remove into this Court the record of the Refugee Review Tribunal for the purpose of its decision dated 24 September 2012 being quashed.
A writ of mandamus issue whereby the matter be remitted to the Tribunal requiring it to determine it according to law.
The First Respondent pay the Applicant’s costs in the sum of $6646.00.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 79 of 2012
| CZBP |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
On 24th September 2012, the Refugee Review Tribunal (“the Tribunal”) upheld a decision of a delegate of the First Respondent to refuse a visa to the Applicant.[1] It is from the decision of the Tribunal that appeal is made to this Court to review that decision.
[1] The Delegate’s decision was made on 15th May 2012. A copy of the Delegate’s decision was not available or provided to the Court.
By an Application, filed 23rd October 2012, the self-represented Applicant listed three grounds of review in support of an order by which she seeks to quash the decision of the Tribunal. Noting that the Applicant is a 61 year old self-represented woman from Iran who does not have English as her native language, and who has no obvious facility with the Australian legal system,[2] the textually facile and somewhat incompletely crafted grounds of review are:
(i)The Tribunal didn’t ask me to documents email [sic] which was needed;
(ii)The Tribunal didn’t consider my medical conditions, even though I provided doctor certificate;
(iii)I had witness present in my court who are ready to testify my words but the Tribunal never asked me to present them.
[2] Such matters of language and a self-represented litigant’s lack familiarity or facility with the Australian legal system were noted as considerations by Allsop CJ in SZRUR v Minister for Immigration and Border Protection (2014) 305 ALR 557 at [50].
In a lengthy, hand-written statement attached to the Application, the Applicant expands upon the grounds of review. As I understand that statement, the grounds there set out (in discursive form, but summarised below) contend that
(a)the Applicant had witnesses available in Iran (and at least two in Australia) who could give evidence on her behalf but she did not know that calling them was possible;
(b)in part because the Tribunal did not accept (so it is said) the Applicant’s medical certificate, the Tribunal was biased against her because it had already made up its mind in relation to the Applicant;
(c)the Tribunal did not respond (properly or at all) to the Applicant’s offer to ensure that a certain email, and its attachment, was translated and forwarded to the Tribunal, which (in my words) led the Tribunal to form an inaccurate view of the Applicant’s evidence/credibility;
(d)the Applicant fears for her safety if she returns to Iran because, as a woman, she contends that she is discriminated against by Mullahs in that country.
The First Respondent (“the Minister”) submits that
(a)no jurisdictional error is evident (or established) in the reasons of the Tribunal,
(b)the Tribunal complied with the requirements of Part 7 Division 4 (s.422B) of the Migration Act 1958 (Cth) (“the Act”),
(c)there is no evidence to support the contention regarding ‘bias’ [i.e. alleged lack of an ‘open mind’], and
(d)the findings made by the Tribunal were open to it on the evidence.
The Court has the benefit of a Court Book (“CB”) provided by the Minister’s lawyers.[3]
[3] The decision of the Tribunal is relevantly set out at CB pp.203-228. The formal “findings and reasons” are at pp.224-228 ([86] – [105]).
Factual Background
It is sufficient to note the following matters by way of background, before considering the reasons of the Tribunal.
The Applicant is a 61 year old woman from Iran. Her hand-written application for a protection visa (at CB 1) confirms her date of birth as 4th February 1953. Her difficult to read passport (at CB 45), but a later reproduced copy (at CB 90) confirms the year of birth as 1953.
Strangely, the Tribunal says (at CB 206; reasons [23]) that she was born in 1963. Yet in the detailed written statement set out in the Tribunal’s reasons, at [25], the Applicant there stated that she was [then] 59 years old. Further, the “official Translation” of the Applicant’s National Identity Certificate (at CB 72) also confirms that she was born on 4th February 1953. How and why the Tribunal could get such a basic fact wrong is not explained, either by inadvertence or otherwise.[4] Such details are not unimportant. I accept that the Applicant is [now] aged 61 years. There is no dispute that the Applicant is a national of Iran, her country of birth.
[4] Other errors in the Tribunal’s record are noted in the course of these reasons. Indeed, it might be argued that it is rather incongruous, if not worse, that a non-English-speaking Applicant is doubted in her evidence because of certain inconsistencies in detail, yet the very Tribunal that is determining the accuracy of her claims itself failed on more than one occasion to record basic facts correctly. Presumably there were no issues of translation for the Tribunal as there were for the Applicant.
She arrived in Australia on 15th August 2011 on a tourist visa for six months to visit her son and daughter.
On 9th February, the Applicant applied for a protection visa. In that application, she deposed that:
(a)after having divorced her Husband 27 years earlier, she had been living alone for 25 years until she met a man called Hamid with whom she entered a de facto relationship;
(b)she (and Hamid) hosted a party in their house, which was raided by the police, who discovered alcohol present, and, in time, that the Applicant and Hamid were not married. All at the party were arrested;
(c)she was detained for 3 weeks and threatened with rape, and subsequently was summonsed to 2 hearings;
(d)while visiting her son and daughter in Australia, her lawyer in Iran attended a third hearing at which she was convicted of adultery and sentenced to 20 years imprisonment and 150 lashes, as well as being deprived of social services for 12 years;
(e)a copy of the Iranian verdict (dated 8 January 2012) was provided to the Tribunal (CB 66-67), and two subpoenæ to attend court on 4 April and 21 July 2011 (all documents stamped in Farsi and English) (CB 68-71).
The short narrative just given of the relevant facts is repeated in the lengthy statement from the Applicant set out in the Tribunal’s reasons, at [25] (CB 207-209). The Applicant provided an even lengthier statement to the Tribunal, which is replicated at [32] (CB 209-216) of the Tribunal’s reasons.
The Tribunal’s Reasons
I note the following from the Tribunal’s reasons; the “reasons” are, strictly speaking, distinguishable from that section of them headed “Findings and Reasons”, which commence at [86] (CB 224).
After setting out in general and unexceptional terms the so-called “relevant law” in relation to “refugee criterion”, and “complementary protection criterion” the Tribunal outlined the Applicant’s claims and evidence.
At [26] and [27], the Tribunal recorded documents provided to it by the Applicant which included subpoenae dated 31 March and 6 July 2011 (both of which required the Applicant to appear in Court on specified dates “on the charge of adultery and having illegitimate sexual relationships”), and a “verdict” dated 8 January 2012 “finding the Applicant guilty and sentencing her to 20 years of imprisonment, 150 lashes, and 12 years prohibition of all social services”.[5]
[5] Copies of these documents are at CB 66-71.
At [31] and following, the Tribunal noted the written submissions that had been provided to it by the Applicant. Those submissions, which are set out in the Tribunal’s reasons at [32] are, primarily, a response to the decision of the Minister’s delegate. For example, at CB 214 and 215, the Applicant noted that the errors in her documentation were attributable to inadvertent errors by her brother, in once instance, and her son in the other, in filling out forms on the Applicant’s behalf. The Applicant also contended in the submissions that her English was insufficient to enable her to respond satisfactorily to matters put to her by the delegate.
At [33], the Tribunal noted statutory declarations that had been received from her son, daughter and son-in-law, that related, among other things, to speaking to her de facto husband, Hamid.[6]
[6] Copies of the statutory declarations referred to are at CB 172-176.
At [34], the Tribunal recorded that the Applicant’s son provided a subsequent statutory declaration, stating that he had incorrectly filled out the Applicant’s Form 80 “due to anxiety”. The Tribunal then stated, in my view, rather summarily: “The Tribunal places no weight on the Applicant’s answers relating to her visa history and conviction in her Form 80, and does not propose to consider that issue further.” No [other] reason is given for this conclusion.
From [35] to [71], the Tribunal outlined the hearing process. In this regard, the Tribunal noted that initially the Applicant sought to have her son-in-law, Mr Zargari, speak on her behalf; the Applicant confirmed that Mr Zargari had written the submissions for her – and her son was also “a big help”. She confirmed that her statement had been written out in Farsi, which was then translated into English.
The Applicant confirmed that her lawyer in Iran is Mr Afshari. The Tribunal asked the Applicant, at [39], if she was willing to produce a copy of “the email from her lawyer which attached the sentencing document she provided to the Department”.
The Applicant said that she had not deleted the email but was concerned about its contents because it contained information about her brother, and she did not want to get him into trouble. The Tribunal requested the Applicant to produce the email within 7 days, and that if it was not forthcoming, it may happen that a summons would be issued.[7]
[7] A copy of the email was [ultimately] forwarded to the Tribunal by the Applicant on 6th September 2012 and is at CB 194.
At [41], the Tribunal asked whether the Applicant’s lawyer attended the hearing at which she was sentenced to the 150 lashes and 20 years imprisonment. The Applicant confirmed that her lawyer was present. The Tribunal then asked: “whether the Applicant would be willing for it to telephone her lawyer and take evidence from him”. The Applicant agreed to this course, that she would obtain his telephone number, but noted that, “as a human rights activist, she had heard that he had recently been arrested”.[8]
[8] The telephone number of the Applicant’s lawyer was provided by the email just noted, dated 6th September 2012.
At [43], the Tribunal put to the Applicant that Article 88 of the Islamic Penal Code of Iran “as reproduced on the UNHCR website” indicated that the punishment for an unmarried adulterer or adulteress is 100 lashes. The Tribunal pointed out to the Applicant that her sentence of 150 lashes and 20 years imprisonment was “considerably in excess of the sentence provided for in Article 88.” The Tribunal asked whether the Applicant was able to explain the discrepancy.
In response, at [44], the Applicant stated that each case is different from the other. She said that she does not know the logic behind the various verdicts; she suggested that sometimes a person gets 99 lashes and sometimes a person gets more. In short, the Tribunal noted that the Applicant could not give “any particular reason”.
At [45], the Tribunal recorded that it put to the Applicant that the discrepancy between her evidence of 150 lashes and that which is provided in the Penal Code, “might cause it to doubt the genuineness of the documents relating to the sentence, which might in turn cause it to doubt whether she had been convicted of an offence, or had ever been in a de facto relationship with Hamid. If the Tribunal took this view, it might conclude that the Applicant was not at risk in Iran.”
It might be noted that the Tribunal did not put to the Applicant anything else in relation to the operation of the Iranian Penal Code, including anything from the email, set out at CB 100-101 dated 19th April 2012, from a section of the Department entitled “Country Research Section [CRS]: Onshore Protection Branch” in which that Section (a) said that it did not have the capacity to verify the authenticity of these documents [being the documents provided by the Applicant], and (b) provided references and or attachments which included a document, dated 7 August 2010, headed “Iran’s legal codes are studded with inconsistencies and vagaries.”
Then followed a discussion about the availability of witnesses on behalf of the Applicant – both in Australia and overseas. The Applicant said that she was not asked to nominate witnesses for the hearing, to which the Tribunal noted that in the documents before the Tribunal, the Applicant had ticked ‘yes’ to the statement that she would request the Tribunal to take oral evidence from another person.
From [50] and following, a discussion is recorded between the Tribunal and the Applicant regarding the two subpoenæ directed to the Applicant and provided to the Department, one from March 2011 and the other from July 2011. The Tribunal asked whether she personally received these documents.[9] The Applicant said that she did not know whether she was in Iran at the time, and that the subpoenas were “put in her house”. She said she was present for two Court hearings, but was not there for the last one.
[9] Copies of these subpoenas are at CB 68-71.
The Tribunal asked whether her lawyer might have received the subpoenas on her behalf; she said that she gave copies of them to her lawyer. As she had done, and recorded by the Tribunal, earlier in the hearing, at this juncture the Applicant stated that she could not remember anything and could not concentrate. The Tribunal then asked whether or not she had any evidence of “a mental health condition” which interfered with her capacity to give evidence to the Tribunal. She said she had no insurance and had not seen a doctor, and had started to feel “like this” when she heard about the verdict issued [in Iran], as well as after she was subjected to torture. The Tribunal allowed her 7 days to provide any medical evidence.
It might be asked why or how a witness (or Applicant) who says that they cannot remember or that they have difficulty concentrating might or must be linked to some medical condition. Unless it is necessarily to rule out some medical reason, the jump from difficulty to recall to a ‘mental health condition’ is not immediately obvious. And raising a “mental health condition” with a self-represented litigant who is already anxious may (but also may not) heighten that anxiety.
Next, the Tribunal discussed with the Applicant her relationship with Hamid. The Tribunal asked, in particular, whether or not she was able to provide any [other] evidence that she was in a relationship with Hamid. This is to say that the only evidence that the Tribunal had before it – other than the Applicant’s testimony – was a photograph of her with a male who she identified as Hamid. The Applicant said that they deliberately kept the relationship secret, so there was no other evidence. However, the Applicant said that she and Hamid spoke to her son, daughter and son-in-law in Australia via Skype. She confirmed that she kept the relationship with Hamid secret, because she “was afraid of the consequences if she opened up about the relationship”.
In this discussion with the Applicant about her relationship with Hamid, the Tribunal did not refer to the three statutory declarations, at CB 172-174, from family members who acknowledge Hamid as the Applicant’s partner and who also confirm knowing and speaking with him.
At [60], the Tribunal again raised the question of her evidence and its inconsistency of 150 lashes as opposed to the penalty for adultery being [only] 100 lashes. The Tribunal asked the Applicant whether she wished to reconsider her evidence in relation to the Court proceedings.
At [61], the Applicant responded, saying that the Judge who issued the verdict did not actually consider the law itself; he would have done as he wished. The Applicant said: “people not familiar with the legal system in Iran cannot believe that these things happen.”
There was a brief discussion, at [62], regarding differences in the position of stamps and signatures on the two sets of documents the Applicant provided to the Department. As noted later, the Tribunal did not place any weight on the small matter of different positions of stamps and signatures on documents.
At [64], the Tribunal put to the Applicant that evidence from her family members “might be tainted by their desire to help her remain in Australia, and accordingly it might place less weight on the evidence”. The Applicant stated “alright”. Two things might be observed here.
First, it is unclear what the Applicant meant by the acknowledgement to the Tribunal “alright”. For example, and perhaps the more likely situation as a self-represented litigant, she may have been simply indicating to the Tribunal that she heard what was said to her; but it also may be that she was acknowledging that she understood the legal import and consequence of what the Tribunal said. From the Tribunal’s reasons, there is simply no way of knowing what was intended by the Applicant’s use of the word “alright.”
Secondly, the Tribunal stated that, in relation to the evidence from the family members, “it might place less weight on the evidence.” The reality is that the Tribunal did much more than place “less weight” on it. In fact, at [94], the Tribunal confirmed that it placed “no weight” on the evidence of any member of the Applicant’s family. I do not suggest that the Tribunal misled the Applicant. Rather, the Tribunal simply said it took this course because the family members “have a strong motivation to give evidence to assist [the Applicant’s] case.” As a matter of process, this does not indicate that the Tribunal undertook any evaluative assessment of their evidence, but rather dismissed all the family evidence out of hand because it could not (or would not) be reliable or accurate. In not undertaking that evaluative course, the process was necessarily flawed. True it is that the Tribunal heard from two members of the Applicant’s family, which it noted at [65] – [70]. However, such references apart, the next reference is the finding or ruling, at [94], rejecting the evidence from family members for the reason there given of their “strong motivation to give evidence to assist her case.”
Put in more conventional terms, the failure properly to evaluate the evidence of the Applicant’s family members, rather than to make (as it did) a blanket assertion that imputes necessary and fatal bias on their part in favour of the Applicant, indicates that the Tribunal failed in its statutory task to review the evidence and relevantly come to a “state of satisfaction” (SZMDS at [130])[10] in its conclusion.
[10] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611.
At [65], the Applicant confirmed that the documents that she had provided to the Tribunal are genuine, and that there is no forgery involved.
Next, the Tribunal considered briefly the evidence of Mr Zargari, who said that he spoke with the Applicant and Hamid many times on Skype over a 7-8 month period, that he stayed with the Applicant in Iran in July 2011 when a Court official came to her door and handed her one of the subpoenas, and that sentences in Iran are “subject to the personal views of the Judge”.
At [68], the Tribunal put to the Applicant the evidence of Mr Zargari, namely that he was present when the July subpoena was served by a Court official. This evidence contrasted to earlier evidence that the subpoena was left at her house, and that she could not recall receiving the July subpoena, and that nobody was with her. The Tribunal stated: “the Tribunal would have expected her to recall if her son-in-law had been present at the time one of the subpoenas was served. This information was relevant to the review as it cast doubt on her credibility, which might form part of the basis for rejecting her claims.” The Tribunal asked the Applicant to comment.
The Tribunal noted that Mr Zargari started to talk to the Applicant in Farsi, before being stopped by the Tribunal. The Applicant said that she could not remember earlier in the hearing, but now that Mr Zargari had spoken she could remember. She said that the subpoena was slipped under the door and that is how she got it.
At [70], the Tribunal referred to evidence of the Applicant’s son, who confirmed that he had spoken to the Applicant and Hamid many times on Skype over a 9 month period. The son also gave evidence that he knew and had spoken with the Applicant’s lawyer, Mr Afshari, some 18 months earlier when the Applicant had been detained in Iran.
The next part of the Tribunal’s reasons, from [72], relate to “post-hearing submissions”.
On 6th September 2012, the Applicant provided the Tribunal with a letter from Dr Jamiel, a general practitioner in Canberra, dated 4th September 2012, which referred to the Applicant’s state of health, and in particular her forgetfulness.
The second document she provided was an email with an email address, [email protected], dated 10 January 2012. The email is in Farsi and does not indicate that documents are attached to it.[11]
[11] See CB 196; the translation is at CB 199.
At [74], the Tribunal requested a translation of the email of 10th January 2012, which was provided to the Tribunal on 21st February 2012. The letter is addressed to the Applicant and is signed “respectfully yours, Rahim Afshari”, who as previously noted is the Mother’s lawyer in Iran. At this stage, it is unnecessary to set out the detail of this email, which, on its face, is the advice to the Applicant of her verdict and sentence in Iran.
At [75], the Tribunal said:
The Tribunal decided not to telephone Mr Afshari in Iran. There is some possibility that his telephone line would be monitored and the Tribunal does not wish to give rise to a sur place claim. Further, although the Applicant provided Mr Afshari’s telephone number at the Tribunal’s request, at no stage did the Applicant request the Tribunal to call Mr Afshari or any other specifically identified witness in Iran.
By way of observation only at this stage, I note that at [41] the Tribunal specifically asked whether the Applicant would consent to it calling Mr Afshari and sought relevant details. The logical inferences of such a question are that it intended to call the Applicant’s lawyer in Iran, that it conveyed this to the Applicant, and sought (and obtained) the Applicant’s consent to this occurring, but then, later and without reference or notice to the Applicant, decided not to call her lawyer.
Secondly, if, as the Tribunal said, it was concerned that Mr Afshari’s telephone line would be monitored, in the absence of any other reason given by the Tribunal, one might reasonably assume that the Tribunal accepted the Applicant’s evidence that her lawyer is a human rights activist and who had corresponded with her by email on 10 January 2012. In the absence of reasons as to why else the Tribunal feared or was concerned about calling a lawyer in Iran whose telephone line might be monitored, and there being no explanation proffered other than as indicated regarding the risk of monitoring of the call, the Applicant’s evidence about Mr Afshari being a human rights lawyer/activist gives the only logical reason for the Tribunal’s reticence and ultimate decision not to call Mr Afshari. Certainly, the Tribunal did not explain how the possibility of a telephone call being monitored could give rise to a sur place claim. No details are given in the reasons regarding the requirements or circumstances of such a claim, or generally as to the evaluative processes by which the Tribunal came to such a conclusion.
For example, the UNHCR Handbook (para.96) states (emphasis added):[12]
A person may become a refugee ‘sur place’ as a result of his own actions, such as associating with refugees already recognised, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities.
[12] Quoted from Guy S. Goodwin-Gill & Jane McAdam, The Refugee in International Law (Third Edition) (Oxford: Oxford University Press, 2007) p.65.
At [78], the Tribunal noted that a report from Amnesty International styled “Iran: End Executions by Stoning” indicated that “the usual sentence for an unmarried person in an adulterous relationship would be 100 lashes” (emphasis added). Again by way of observation: this is the only “independent” evidence (other than the Tribunal’s reference to the Iranian Penal Code itself) about penalty for an adulterous relationship in Iran in the Tribunal’s reasons.
At [86] – [104], the Tribunal set out its “findings and reasons.”
Findings & Reasons – Briefly Annotated
It is unnecessary to record (or comment on) in any detail the Tribunal’s finding, at [87], that the medical certificate provided by Dr Jamiel (from the ACT) does not assist the Applicant. It is sufficient to note the following from that paragraph (albeit that it is not the first or only example of the poorly written or edited reasons and the lack of attention to detail by the Tribunal). Referring to Dr Jamiel’s certificate, the Tribunal said: “In any event, the provides [sic] not details [sic] of the nature of the examination or the tests undertaken by the doctor (if any), nor does it disclose the basis of the doctor’s findings.”
Nor is it particularly relevant to do anything other than to record the Tribunal’s finding, at [88], that in the absence of relevant medical evidence the Tribunal did not accept that the Applicant suffered from any relevant “memory problems” or “any other mental health condition” that affected her capacity to give evidence.
This said, and accepting that the Tribunal is not a court and is not, strictly speaking, bound by the usual acknowledgements, by way of observation, there is nothing to suggest, let alone indicate, that the Tribunal was in any relevant way sensitive to an Applicant, of some senior years, in a foreign country, with modest language skills in English, and before a Tribunal without any obvious knowledge or understanding of its procedures, and who was without legal representation. It might be reasonably assumed that such a person, like most witnesses in court, would likely have a certain degree of apprehension if not significant anxiety in giving evidence, the more so when there are language difficulties, and where (as here) one’s liberty is said to be at stake. All such human frailties would be likely to affect to some greater or lesser degree a person’s memory and general capacity in giving their evidence, as is reasonably commonly acknowledged in courts. I note that Mortimer J commented in SZRUR, at [60], in the following terms:
… as the New South Wales Court of Appeal in Hamod observed at [312], the primary judge was also required to put an unrepresented litigant in a position to make an effective choice how to conduct his case.
Respectfully, I adopt and apply her Honour’s comments to the current matter. Acknowledging the fact that the Tribunal is not a court, and that it has rather more streamlined procedures, nonetheless, in my view, the Tribunal should have ensured, as best it could in the circumstances, that the Applicant was in a position to make an effective choice about the conduct of her case, in the light of the matters being put to her by the Tribunal particularly regarding matters of alleged inauthentic documents, the relevance and accuracy of sentences of adultery in Iran, and the blanket disbelief of family evidence.
The only reason ultimately given by the Tribunal for its refusal to accede to the application to overturn the Delegate’s decision to refuse a protection visa is the finding, at [89], that “the 2 subpoenas and the verdict provided by the Applicant are not genuine documents.” It lists four reasons (at [90] – [94]) for this finding. Those reasons are as follows.
First, at [90], the Tribunal noted that it placed “considerable weight” on the discrepancy between the Applicant’s evidence that she was sentenced to 150 lashes (and 20 years imprisonment, etc) when (a) the Penal Code of Iran provided for the offence of adultery a punishment of 100 lashes, and (b) the Applicant did not draw the Tribunal’s attention to, “nor did the Tribunal find, any reference to sentences of unmarried adulteresses in excess of 100 lashes.”
Respectfully, in my view, there are a number of difficulties with the Tribunal’s reasoning and the evidence it relies upon in this paragraph. Summarily those difficulties are:
(a)at [78] of its reasons, the Tribunal referred to the report from Amnesty International which said that “the usual sentence for an unmarried person in an adulterous relationship would be 100 lashes.” If there be such a thing as the “usual sentence” for unmarried adultery, such as 100 lashes, it is a logical inference that there can be sentences that are not “usual”, even, for example, of 150 lashes;
(b)the Tribunal made no reference to the Amnesty International Report in its findings and reasons. In circumstances where the Tribunal placed considerable weight on the provisions of the Iranian Penal Code, it is logically inconsistent, and a flaw in its consideration of the evidence before it, not to refer also to the Amnesty International Report in relation to the “usual sentence” for such offences and the necessary inference or implication that it is likely that there are also sentences that are not, or may not be, so “usual”;
(c)the Tribunal set up a standard of knowledge for the Applicant that was, respectfully, designed to ensure that she failed. The [implied] standard required the Applicant to have relevant knowledge of the Penal Code of Iran, and particularly in relation to offences and punishment for adultery. This would be akin to expecting the average Australian to have relevant knowledge of the relevant criminal statute in his or her State or Territory. To require such knowledge of a lay-person, and hold that knowledge as the standard against which his or her evidence is to be judged, in my view, is unreasonable in all the circumstances. Moreover, there were no ‘foundational questions’ put to the Applicant, such as whether she was in any way relevantly aware of the requirements of the Penal Code of Iran, or whether she was aware of those parts of it that related directly to ‘unmarried adultery’;
Secondly, at [91], the Tribunal said that, although the body of it referred to ‘attached file’, because the email from the Applicant’s lawyer of 10 January 2012 did not print out with any indication of attachments to it, and because the relevant email address was by a ‘mainstream email provider’, it could not be satisfied that the documents provided by the Applicant “originated from Iran.” The following observations can be made about this paragraph of the Tribunals’ reasons:
(a)Nowhere does the Tribunal challenge or otherwise call into question the information contained in the email from Mr Afshari, dated 10 January 2012, to the Applicant. The information and advice contained in it is perfectly consistent with the evidence of the Applicant about receiving a verdict which, in the words of her lawyer, is “very severe” and “unjust.” It also informed the Applicant of threats, including a summons directed to her brother-in-law in Iran, and to her nephew.
(b)Further, nowhere does the Tribunal consider the contents, and in particular, the warning and advice to the Applicant from her lawyer, that she would be well advised “not to return to Iran” for the reasons the lawyer then articulates.
(c)Rather, because the email, when opened, did not contain the attachments referred to, the Tribunal found adversely against the Applicant. There may be a number of other reasons why there were no attachments, or none opened when the email was opened, not least being that, although Mr Afshari intended to attach the relevant files, for some reason he omitted to attach them.
(d)Further, the Tribunal noted, at [72], that the original email (in Farsi) “does not indicate that documents were attached to the email.” Yet, precisely because in the translation of the email there is a reference to attached documents, and no attachments open when the email was opened, this, said the Tribunal, indicates that the documents provided by the Applicant may not have originated in Iran. The dissonance between the email in Farsi and its translation was not explored by the Tribunal.
(e)This might also require the Tribunal to have put to the Applicant whether the documents (at pp.66-71 CB) had been created by someone else, if not as a formal challenge, and/or that they had been forged. Clearly something had earlier been put to the Applicant about the documents, because in her long statement (especially at CB p.213), she referred specifically to “the genuineness of her documents.”
(f)Absent any other evidence, tempted though one is to do so, the Court cannot take judicial notice of the vagaries of email and the not infrequent difficulties in opening attachments to them. What is more concerning here is that (a) the Tribunal noted that the original email (of January 2012) in Farsi did not refer to any attachments, (b) there was/is no suggestion that the Applicant was the translator of the email, yet (c) because the translation of the email somehow referred to attachments, the Tribunal came to a conclusion that the documents that supported the Applicant’s case did not necessarily come from Iran, which, therefore, undermined the Applicant’s credibility, and in turn, her case. The leaps of logic between the steps mentioned, and more relevantly the legal connection between them, respectfully, are not immediately apparent.
Thirdly, at [92], the Tribunal said there was an inconsistency between the Applicant’s evidence regarding the service of the subpoena dated 6 July 2011, and the evidence of Mr Zargari. The evidence of the Applicant was that she could not recall the service of this subpoena. The Tribunal said, at [93], that one would have expected the Applicant to remember that Mr Zargari was present when the subpoena was served. The Tribunal said further: “The fact that she as unable to recall this leads the Tribunal to find that the reason the Applicant had no recollection of service of the subpoena is that it is not a genuine document and was never served on her.”[13]
[13] The Tribunal also noted here that Mr Zargari sought to prompt the Applicant in her evidence.
Respectfully, the logical or causal connection (not to mention any relevant legal connection) between a person’s lack of recollection and the genuineness of a document is not immediately obvious. For example, the Applicant may have no recollection of her National Identity Certificate (at CB 72), which seems to bear the same stamps as the subpoenas under question here, but such lack of recollection (if that be the case) would not, without more, mean that that Certificate is doubtful and that it did not emanate from Iran. Put another way: lack of recollection, without more, cannot be a test for the authenticity of a document from overseas.
The final and fourth reason given, at [94], was that the Tribunal said that there was no probative evidence that the Applicant was in fact in a [de facto] relationship with a man in Iran called “Hamid.” The Tribunal did not accept the evidence of Mr Mahmoudian and Mr Zargari, even though, in the preceding paragraph, the Tribunal used the latter’s evidence to challenge the evidence of the Applicant. The Tribunal said that it would have expected the Applicant to have been able to provide evidence of the relationship asserted.
However, this overlooks the fact that the Applicant was in Australia visiting family when her lawyer advised her that she had been convicted. Presumably she was not expecting such a verdict, and therefore would not, as a matter of course on a visit to see her adult children in Australia, brought with her relevant evidence to support a case she was not otherwise expecting to have to fight. Yet it is precisely on this lack of evidence that the Tribunal focussed a specific part of its attention, adverse to the Applicant.
This is even more curious if not inconsistent when, at [97], the Tribunal acknowledged that the Applicant would not have been able to produce any relevant documents regarding her ‘bail surety’, precisely because she was in Australia at the time.
I will not repeat earlier comments about the proper evaluative task under the Act to weigh the evidence, including that of family members, rather than make (as the Tribunal did) a blanket ruling of ‘strong motivation’ to give evidence in support of the Applicant. In my view, the Tribunal did not undertake the proper evaluative task.
The above matters led the Tribunal to conclude, at [95], that the Applicant (a) was not the subject of court proceedings in Iran, (b) was not charged with or sentenced in relation to offences concerning adultery or illegitimate sexual relations, and (c) was not in a de facto relationship with “Hamid.” These findings then lead the Tribunal to conclude that the Applicant would not be punished by authorities if she returned to Iran, and would not live in a de facto relationship if she returned to that country.
At [96], the Tribunal said that it concluded that the relevant documents (two subpoenæ and the verdict document) were not genuine documents, but did not rely for this conclusion on the different placement of certain stamps.
Likewise, at [97], the Tribunal did not place any significance on the ability of the Applicant to leave Iran ‘while on bail.’
At [98], the Tribunal concluded that there was “no real chance” that the Applicant would suffer persecution in Iran “for reason [sic] of actual or imputed political opinion”. I am not aware that such a ground was ever asserted by the Applicant. Why it is set out in the reasons of the Tribunal is unclear. In any event, the Tribunal went on to say that the Applicant would not be at risk of persecution in Iran because of her membership “of a particular social group being unmarried persons in de facto relationships”, or for any other reason. It found that “her claimed fear of Convention-related persecution in Iran is not well founded.”
Having so concluded that the Applicant did not meet “the criterion in s.36(2)(a)”, it was then necessary for the Tribunal to consider “the alternative criterion on s.36(2)(aa).”
For the reasons already given, the Tribunal held that the Applicant did not meet the alternative criterion in s.36(2)(aa).
In conclusion, at [101], the Tribunal said that it was not satisfied that there are “substantial grounds” for believing “that there is a real risk that the Applicant would suffer significant harm in the form of: arbitrary depravation [sic] of life; the death penalty being carried out; torture; cruel or inhuman treatment of punishment, or degrading treatment.”
The Tribunal further concluded – doubtless, one would hope, unintentionally – that “he [sic] does not satisfy the requirements of s.36(2)(aa).” One would hope further that, having referred to the Applicant on many occasions as “she”, this last lack of attention to relevant detail and referring to the Applicant as “he” was not deliberate. It was, at least, unfortunate, as well as inappropriate.
Submissions
Having summarily outlined earlier in these reasons the Applicant’s limited grounds of review/appeal and the general bases for them, it is sufficient here to note the following from the Respondent Minister’s submissions.
The first thing to record is that, at para.14, it was submitted that the Tribunal (emphasis added):
… found that the 2 subpoenas and verdict were not genuine documents as the sentence of 150 lashes and 20 years imprisonment was significantly in excess of the 100 lashes set out in article 88 of the Iran Penal Code (CB 225 [90]), the email from the lawyer did not indicate the presence of any attachments and the Tribunal was not satisfied that the email originated in Iran (CB 225 [91])…
The exact words of the Tribunal, at [91], in my view, indicate that the Tribunal was referring, as the precise terms of the paragraph of the reasons state, to the documents “provided by the Applicant”, those documents being the verdict and the 2 subpoenas. It makes no reference to any finding that the email itself from the lawyer was not genuine. The full text of [91] of the Tribunal’s reasons is as follows:
Secondly, although there are references to attached files in the translated text of the email dated 10 January 2012 provided by the Applicant, the print out of the email does not indicate that there were any attachments to the email. Customarily, a reference to the presence of attachments to the email is contained in print outs of emails. The Tribunal notes that the Applicant’s email provider, yahoo.com, is a mainstream email provider. Accordingly, the Tribunal is unable to be satisfied that the documents provided by the Applicant originated in Iran.
Both by context and by reference to earlier paragraphs in the Tribunal’s reasons (e.g. at [41], [48] and [74]), I agree with the earlier part of the Minister’s submission that the reference at [91] is to the three documents mentioned – the 2 subpoenas and the verdict. It does not refer to the email from Mr Afshari or otherwise indicate any finding regarding the genuineness of that email. Further, later in the Minister’s submissions (at para.22) there is only reference to the Tribunal’s doubts concerning the genuineness of “the sentence documents”, as opposed to the email from Mr Afshari of 10 January 2012. In my view, the submissions from the Minister (at paras.22 & 31) further support the reading I prefer and have adopted of [91] of the Tribunal’s reasons, namely, that there is no finding in relation to the lawyer’s email of 10 January 2012.
More generally, the Minister submitted that, not only because the Applicant had filed no written submissions, the grounds of review are unmeritorious and cannot be made out on the evidence. Accordingly, it was submitted the Application should be dismissed with an order for costs.
In relation to more specific matters, the Minister submitted as follows.
Regarding the Applicant’s failure to ask for witnesses to be heard by the Tribunal, the Minister submitted that, other than persons said to have been at the party in Iran which (it is said) led to the Applicant being charged, and who were also present in Court, the Applicant did not name the witnesses she sought to call, “nor indicated how their evidence would assist her case.”[14]
[14] See Minister’s submissions, at paras.20-22.
It was further outlined (at para.23) the circumstances whereby (a) the Tribunal asked the Applicant if she would be willing for it to contact her lawyer, (b) the Applicant indicated her consent to this course, (c) the Applicant understood that her lawyer was arrested in Iran, (d) after the hearing, the telephone number of the lawyer was provided to the Tribunal by the Applicant, and (e) ultimately the Tribunal decided not to call the lawyer.
After referring generally to Part 7 Division 5 of the Act, then specifically to s.426, the Minister submitted that s.426(3) was engaged only in circumstances where specific witnesses were nominated by the Applicant. Two witnesses [only] had been nominated; both of them gave evidence. Further, the Minister submitted, there was no obligation on the part of the Tribunal to aid the Applicant in making out her case. Further, it was submitted that the obligation imposed by s.426(3) to consider obtaining evidence does not extend to un-named witnesses mentioned at the hearing.
The Minister’s submissions do not address whether there was any requirement to consider calling the Applicant’s lawyer in circumstances where (a) the Tribunal sought permission from the Applicant to do so, (b) the permission sought was granted, (c) the telephone number was supplied (as requested) but, (d) without reference or notice to the Applicant, the Tribunal later decided not to call the lawyer, Mr Afshari, because (at [75]) “there was some [unspecified] possibility that his telephone line would be monitored and the Tribunal [did] not wish to give rise to a sur place claim.” How and why it would make any relevant difference if the lawyer’s telephone line was monitored was not explained by the Tribunal, or commented on by the Minister.
Nor was it explained how a ‘sur place’ claim might arise. However, if such a claim was a possibility – at least in the mind of the Tribunal – it might be argued that (a) the telephone call to the lawyer was a relatively easy inquiry for the Tribunal to have undertaken, and (b) not to have called the lawyer, because of a possible ‘sur place’ claim, might be said to have deprived the Applicant of a further claim, and/or that the risk of a sur place claim identified by the Tribunal might be said further to support the Applicant’s claims before the Tribunal. In the absence of relevant reasons from the Tribunal regarding (i) the failure to call the Applicant’s lawyer in the circumstances outlined, and (ii) its fear of a sur place claim, the Court simply cannot undertake any relevant further analysis. It is perhaps arguable that the failure to make the relatively uncomplicated call, or “obvious inquiry”, to the lawyer in Iran, according to SZIAI, constituted failure to review.[15]
[15] See SZIAI (2009) 259 ALR 429 at [25].
Regarding the ‘failure to request documents’, the Minister submitted (paras.26-34) that (a) the Applicant was aware from the Delegate’s decision that the authenticity of her “attachment documents” was in issue, (b) the Tribunal set out its reasons for doubting the authenticity of them (summarised at para.31 of the submissions), (c) notwithstanding the Applicant’s evidence that the translator had removed the documents attached to the lawyer’s email of January 2012, the wrong finding of fact is not a jurisdictional error. Rather, the Minister submitted that there was “some evidence” upon which a finding of fact could be made. Otherwise, the Minister submitted (by reference to the High Court’s comments in SZIAI (at [25])) that the Tribunal was under no duty to inquire by requesting an electronic copy of the [January 2012] email.
The Minister also submitted that the attachments to the emails were not a “critical fact with a sufficient link to the outcome.” Rather, (said the Minister) the Tribunal found, and was entitled to do so, that the authenticity of the document(s) was based on adverse credibility findings in relation to the Applicant. Respectfully, this is a rather circular argument because the adverse credibility findings related to the Tribunal’s findings regarding the documents put before it. Indeed, one of the four reasons given by the Tribunal was precisely because the documents were not attached to the crucial email of January 2012 and therefore the Tribunal could not be satisfied that the documents emanated from Iran.
In relation to the Applicant’s medical condition, the Minister submitted (paras.35-41) that (a) the Applicant appeared mentally capable at the hearing and was taking notes, (b) the Tribunal was not satisfied that the GP who had examined the Applicant and provided a medical certificate had, in fact, examined her, and (c) the Tribunal was under no duty to arrange an independent assessment of the Applicant.
Finally, in relation to the allegation of bias against the Tribunal because it rejected the medical certificate provided by the Applicant, the Minister submitted that bias was not made out simply because the Tribunal did not accept, or rejected certain parts of the Applicant’s evidence.
Following the invitation of the Court for the parties to comment on two recent decisions of the Full Court of the Federal Court of Australia - Minister for Immigration and Border Protection v MZYTS (“MZYTS”), and Minister for Immigration and Border Protection v SZSRS (“SZSRS”), the Minister further submitted as follows.[16]
[16] The Applicant provided no further submissions.
Generally, the Minister said that neither of the recent Full Court decisions is relevant to the current matter. More particularly, the Minister submitted that, unlike MZYTS, in the present matter the Tribunal indicated to the Applicant the issue of concern, namely the disparity between her account of the verdict in Iran and article 88 of the Iranian Penal Code. The Minister further submitted that the Tribunal “had regard to a 2008 Amnesty International Report which indicated that the usual sentence for an unmarried person who commits adultery was 100 lashes.” And further, the Applicant did not put forward any more recent country information regarding the sentence for adultery, “nor were her claims to protection based on any developments in Iran post-dating the material considered by the Tribunal.”
In relation to the Full Court decision in SZSRS, the Minister submitted that “it is not suggested [in the present case] that the Tribunal failed to consider any claim or evidence put forward by the Applicant.”
Outline of Legal Principle
Before turning to a more detailed consideration of the findings and reasons of the Tribunal, I set out the following general summary of principle.
In Appellant S395/2002, at [16], McHugh and Kirby JJ said (internal citations omitted):[17]
The 1951 Convention relating to the Status of Refugees declares that for the purpose of the Convention a refugee is a 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 ...".
[17] Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473. See also, VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1 at [11] and [12] (Gummow J).
There are subjective and objective elements of the definition of “fear of persecution.”[18]
[18] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16.
The Court does not, and ought not, engage in ‘merits review’.[19]
[19] Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-37 (Brennan J); Minister for Immigration and Citizenship v Li (2013) 297 ALR 225 at [66] (Hayne, Kiefel & Bell JJ).
The weighing of the various pieces of evidence is a matter for the Tribunal.[20]
[20] See Abebe v Commonwealth (1999) 197 CLR 510 at [197] (Gummow & Hayne JJ).
The nature of proceedings before the Tribunal is inquisitorial, with no general duty for the Tribunal to obtain evidence, but with a requirement, per ss.415 and 420(1) of the Act, to ensure that the discharge of its “core function” to review decisions is by a mechanism that is “fair, just, economical, informal and quick.” The Tribunal is also required, per s.420(2)(a) and (b), to act “according to substantial justice and the merits of the case” but without being bound by “technicalities, legal forms or rules of evidence.”[21] The onus is on the Applicant to put relevant evidence before the Tribunal.[22]
[21] Minister for Immigration & Citizenship v SZGUR (2011) 241 CLR 594 at [1], [19] & [23] (French CJ & Kiefel J); Minister for Immigration & Citizenship v SZKTI (2009) 238 CLR 489 at [3] – [5] & [21] ff.
[22] SZGUR 241 CLR at [83] (Gummow J).
In SZMDS, Heydon J cautioned, at [85] (note 60), that a court should not engage in an exercise of “construing the words of non-judicial decision-makers minutely and finely either with an eye keenly focussed on the perception of error, or with an ear keenly attuned to the perception of error.”[23]
[23] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611. To similar effect, see the plurality reasons of Brennan CJ, Toohey, McHugh & Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at p.272, and Kirby J at p.291.
The matters before the Tribunal must nonetheless be considered in a ‘proper, genuine and realistic’ manner.[24] However, a reviewing court must also be attentive against importing civil litigation ‘requirements’ (e.g. in relation to matters of evidence) into administrative law.[25]
[24] Minister for Immigration & Citizenship v SZJSS (2010) 243 CLR 164 at [29] – [33].
[25] Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at [143] (Gummow J).
In Li, at [22], by reference to SZMDS at [39], French CJ said (internal citations omitted; emphasis added):[26]
… This aspect of the case raises the question whether the decision of the MRT was unreasonable in the sense used by Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation, that is to say so unreasonable that no reasonable tribunal could have made it. In approaching that question it is necessary to keep in mind the distinction between a decision-maker finding a jurisdictional fact and a decision-maker exercising a discretion.
[26] Minister for Immigration and Citizenship v Li (2013) 297 ALR 225. In SZMDS, Gummow A-CJ and Kiefel J said, at [39] (emphasis added): “Confusion of thought, with apprehension of intrusive interference with administrative decisions by judicial review will be avoided if the distinction between jurisdictional fact and other facts then taken into account in discretionary decision making is kept in view. (footnotes omitted).”
In the words of Gummow and Hayne JJ in S395/2002, at [73], the decision-maker is required “to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant.”[27] In the same case, at [78], their Honours also instructed that (emphasis in original; internal citations omitted):
The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.
[27] Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473.
The integers for who constitutes a “refugee” for the purposes of the Act are discussed by Gummow J in VBAO at [11] – [22].[28] In the same case, at [1], Gleeson CJ and Kirby J, and Gummow J at [16] – [20], discuss “threat” for the purposes of the Act.
[28] VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 233 CLR 1.
Three final matters might be noted as points of relevant reference for the current matter.
First, there is a brief discussion of bias in matters of the present kind set out in SZJSS, at [41] – [44].[29]
[29] Minister for Immigration& Citizenship v SZJSS (2010) 243 CLR 164. See also the discussion in Re Refugee Review Tribunal; ex parte H (2001) 179 ALR 425.
Secondly, as a general proposition, according to the discussion by French CJ and Kiefel J in SZGUR at [22], there is no legal duty imposed on the Tribunal by s.427(1)(d) to make a particular inquiry. This was somewhat qualified, however, by their Honours, at [23], by reference to comments from the plurality judgment in SZIAI, at [25], where the plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) said (internal citations omitted; emphasis added):[30]
The duty imposed upon the Tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error.
[30] Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429.
The third and final matter to note here relates to the extended discussion by the High Court in a number of recent cases as to what does and what does not constitute “unreasonableness”, “illogicality” or “irrationality” in the decision of the Tribunal. The relevant discussions, for current purposes, are those in the joint judgment of Crennan and Bell JJ in SZMDS, at [121] – [131], and by Hayne, Kiefel and Bell JJ in Li, at [63] – [76], and by Gageler J (also in Li), at [88] – [103].[31]
[31] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; Minister for Immigration and Citizenship v Li (2013) 297 ALR 225. Although the decision in Li relates directly to the Migration Review Tribunal and those sections of the Act which relate to that Tribunal, the principles must, respectfully, apply similarly to the Refugee Review Tribunal.
Consideration & Resolution
In the light of the earlier comments on the findings and reasons of the Tribunal, the following summary discussion is sufficient to establish that, in my view, the Tribunal relevantly erred in a jurisdictional sense, in carrying out its statutory responsibility to review the decision of the delegate that was made on 15th May 2012. In coming to such a conclusion, I note and have had particular regard to the distinction drawn by Robertson J in SZKRT between claims, on the one hand, and evidence on the other. I also note that his Honour’s comments have been endorsed by two recent Full Court decisions.[32]
[32] Minister for Immigration and Citizenship v SZRKT (2013) 212 FCR 99. His Honour’s comments were cited with approval by the Full Court in Minister for Immigration and Border Protection v MZYTS [2013] FCAFC 114 (Kenny, Griffiths & Mortimer JJ), and even more recently by a differently constituted Full Court in Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16 (Katzmann, Griffiths & Wigney JJ).
In my view, the first error of the Tribunal, in a jurisdictional sense, was its failure to consider the email from Mr Afshari, the Applicant’s lawyer. Although noted and set out in full at [74], and noted again at [91] of the Tribunal’s “findings and reasons”, nowhere did the Tribunal consider or relevantly take account of the matters actually set out in Mr Afshari’s email to the Applicant. The contents of this email are consistent with the Applicant’s account of the verdict against her and, in Mr Afshari’s words, “the very severe verdict” against her, namely the infliction of brutal corporal punishment and imprisonment to which she referred in her evidence. While the Tribunal referred to and commented on the two subpoenas and the verdict document, it made no specific finding or ruling in relation to the email and its advice to the Applicant.
In SZKRT, Robertson J held as follows: (a) at [77] – [79], it is not the case that a finding in relation to credit may never found a conclusion of jurisdictional error; (b) at [112], the relevant factors in relation to (corroborative) evidence include first, the cogency of the evidentiary material and, second, the place of that material in the assessment of the applicant’s claims”; and (c) at [119] the Tribunal’s credibility finding (in SZKRT) related not only to matters of fact but also had much wider provenance. As his Honour said (emphasis added):
This was not a case where the Tribunal took a nuanced approach to questions of credit by considering whether its disbelief of the applicant in one respect nevertheless did not mean that it disbelieved him generally; rather, the Tribunal’s approach was to disbelieve the applicant generally.
I have already noted that, in my view, the Tribunal clearly took an approach that amounted to a blanket disbelief of the Applicant’s family’s evidence. It was not nuanced in any relevant respect.
Further, in SZKRT at [120], his Honour referred to “unexplored possibilities” of the evidence not relevantly considered by the Tribunal. In the same place, his Honour said: “It is for the Tribunal to deal with the material before it and to resolve any conflicts in it.” Then at [121], Robertson J said (emphasis added):
To adopt the language of Buchanan J in Minister for Immigration and Citizenship v SZCOQ [2007] FCAFC 9 at [61], relied on by the Minister, these considerations bear upon the material elements which must be satisfied, or rejected, when dealing with an applicant’s claims.
On the facts of the present matter, to use the words of Robertson J in SZKRT, there was no nuanced assessment of the Applicant’s credibility here. Rather, the Tribunal disbelieved the Applicant generally, as it did of her family members, as I have already said. And more to this, the Tribunal did not challenge, but more so did not consider, the corroborative evidence of Mr Afshari’s email of 10 January 2012, which advised the Applicant not to return to Iran because of the risk of her facing the “very severe verdict” that had issued against her. Nor did the Tribunal consider the rest of the email which referred to the Applicant’s brother (in Iran) being summonsed, and threats to her nephew.
The failure to consider the Applicant lawyer’s emailed letter to her of January 2012 is of a piece with the failure, in SZSRS, to consider the pastor’s letter in that case, and likewise, the failure to consider the academic transcript in SZRKT. In both SZRKT and SZSRS, the Full Court held that such a failure constituted jurisdictional error. In my view, the same conclusion is apposite here. The email was a material piece of evidence. There is no indication that the Tribunal either accepted or rejected it in the course of considering the Applicant’s claims.
Further, in SZGUR, Gummow J said, at [69] (internal citations omitted; emphasis added):
Contrary to the reasoning in the Federal Court, par (b) of s 430(1) does not create any requirement that the Tribunal record generally "what it did" in conducting its review, and does not require the Tribunal, in every case, to describe or state the procedural steps taken by it in reviewing the relevant decision. The obligation under s 430(1) focuses upon the thought processes of the Tribunal in reaching its decision on what it considers to be the material questions of fact. The absence of reference in the Tribunal's reasons to its consideration of the request for a medical examination of the first respondent is to be contrasted with an absence of reference to findings of fact or to evidence and material upon which such findings are based.
The “thought processes” (or the failure to undertake the relevant process of evaluating the claims and the evidence) referred to by Gummow J, were considered further by the Full Court of the Federal Court in MZYTS, notably at [31] – [34], and also at [36], where the Court said (emphasis added):
… to say there has been a “failure to consider recent information” or a “failure to consider a claim” may be no more than descriptions or explanations of the manner in which the Tribunal’s task has miscarried, but it is the miscarriage of the task which constitutes the jurisdictional error.
Then at [44], the Full Court said (emphasis added):
The absence of any such evaluation in the face of what the visa applicant and his adviser submitted, and in the context of the Tribunal’s statutory task, can only signify a constructive failure to exercise jurisdiction.
At [46], by reference to the High Court decision in Kirk v Industrial Court of New South Wales,[33] the Full Court referred to the necessary process, or the failure to do so, “to form the state of satisfaction (one way or the other) required for the purposes of the review in respect of the criterion in s.36(2)(a).” (emphasis added)
[33] Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, at [64].
Critically, at [49] and [50] in MZYTS, the Full Court said (emphasis added):
[49] … The Court is entitled to take the reasons of the Tribunal as setting out the findings of fact the Tribunal itself considered material to its decision, and as reciting the evidence and other material which the Tribunal itself considered relevant to the findings it made: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 (Yusuf) at [10], [34], [68]. Representing as it does what the Tribunal itself considered important and material, what is present — and what is absent — from the reasons may in a given case enable a Court on review to find jurisdictional error: see Yusuf 206 CLR 323 at [10], [44], [69].
[50] The Tribunal’s reasons disclose no process of weighing evidence and preferring some over the other. In the context of two or more pieces of apparently pertinent, but contradictory, evidence an expression of a preference for some evidence over other evidence generally requires an articulation of the different effects of the evidence concerned, and then some indication as to why preference is given. All these are matters for the trier of fact. The absence from the recitation of country information of the material referred to in the post-hearing submissions is indicative of omission and ignoring, not weighing and preference.
It is also important to record, as the Full Court did in MZYTS at [51], by reference to the High Court joint judgment of French CJ and Kiefel J in SZGUR at [31], the following, namely:
… a distinction between the omission of a matter from the Tribunal’s reasons as indicating the Tribunal did not consider the matter material, and that omission indicating the Tribunal did not consider the matter at all.
Then at [52], the Full Court said (emphasis in original):
In the particular circumstances of this claim, if the material had been considered, one could expect that it would be referred to, even if it were then rejected.
Just so here: I have already noted that the Tribunal earlier referred, at [74] of its reasons, to Mr Afshari’s email letter to the Applicant of January 2012. But nowhere is there any evaluative task undertaken by the Tribunal of that letter, and the lawyer’s advice to the Applicant to stay away from Iran because of the ‘very severe verdict’ entered against her. This corroborative piece of evidence was not weighed against any other evidence, and significantly, it was not considered by the Tribunal in the context of the “considerable weight” placed by the Tribunal, at [90] of its Findings and Reasons, on the particulars of the Iranian Penal Code.
Nor was the email letter of January 2012 considered in the light of the “independent information”, and in particular the information from the Amnesty International Report (set out at [76] and [78] of the Tribunal’s reasons) regarding the “usual sentence for an unmarried person in an adulterous relationship would be 100 lashes.” This “independent information” was not addressed, or referred to, in the Tribunal’s “findings and reasons.” A reference in an earlier paragraph of its reasons does not, in my view, indicate anything to do with the Tribunal’s “thought processes” and the proper consideration and evaluation of that information in the light of the Applicant’s claims. Because it was not even mentioned in the findings of the Tribunal, it must be that in its assessment of the Applicant’s credibility, that independent information was not part of the Tribunal’s evaluative process. Accordingly, for this reason also, the Court must conclude that there was a constructive failure to exercise jurisdiction because the Tribunal had not considered relevant evidence (to which it had earlier referred) in reaching a relevant state of satisfaction required by the criterion in s.36(2)(a) of the Act.[34]
[34] For completeness, it is sufficient to note that s.36(2A) of the Act provides a comprehensive definition of what constitutes “significant harm.” The Court might reasonably conclude that “lashing” would readily satisfy the definition of “significant harm”.
The same conclusion might also properly be reached in relation to the Tribunal’s failure to make the obvious and straight-forward inquiry of a telephone call to Mr Afshari in Iran (or even some other straight-forward means of inquiry of him) to check out critical facts – for example, in relation to the emailed letter of January 2012, any relevant attachments to it, and the confirmation of the Applicant’s “severe verdict”. All were critical matters before the Tribunal. And in deciding, after the event and without notice to the Applicant, not to call her lawyer, the Tribunal deprived itself (and the Applicant) of this critical information. Regrettably, too, the Tribunal did not explain its relevant “thought processes” as to why (or how) the possibility of a telephone call being monitored might give rise to a sur place claim. The Court cannot (and should not) speculate as to why the Tribunal thought such a call might pose such a risk.
In the words of the Full Court in SZSRS, at [29]: “The fundamental question is the importance of the material to the exercise of the Tribunal’s function and the seriousness of the error.” At [47], and again at [49], the Full Court emphasised this central concern, thus (emphasis added):
[47] The Minister sought to characterise the situation here as, at worst, the Tribunal ignoring a mere “piece of evidence”, as opposed to ignoring a claim or claims. Ultimately, however, he accepted that whether or not the Tribunal’s failure to consider the letter amounted to a jurisdictional error turns on the importance of the ignored material to the Tribunal’s process of decision-making. That was inevitable in the light of his ultimate acceptance of the correctness of Robertson J’s analysis of this kind of error in SZRKT.
[49] In SZRKT the Minister submitted that failing to take the academic transcript into account did not amount to a jurisdictional error so long as it did not mean that the Tribunal overlooked the applicant’s claim or claims. In substance he made the same submission in the present case. But in SZRKT Robertson J rejected the submission as reflecting an approach to jurisdictional error that relied on categories or formulas. In particular, his Honour held (at [110]) that whilst the distinction between claims and evidence may be a useful tool of analysis, ultimately what is required is a case-specific analysis focusing on the importance of the ignored material and the seriousness of the error. His Honour said (at [98]) that “although ultimately it is the claim which the Migration Act requires to be considered, there are many ways, actual or constructive, of failing to consider the claim”.
In my view, the comments by the Full Court in SZSRS apply with equal force to the facts and circumstances in the current matter. The Tribunal’s consideration of the Applicant lawyer’s email, as well as the ‘independent information’ from Amnesty International regarding the ‘usual’ number of lashes meted out in Iran to unmarried adulteresses, did not feature in the Tribunal’s evaluative process. That material went directly to the central findings of the Tribunal regarding the Applicant’s credibility. To adopt, respectfully, the words of the Full Court in MZYTS, at [44]:
The absence of any such evaluation in the face of what the visa applicant and his adviser submitted, and in the context of the Tribunal’s statutory task, can only signify a constructive failure to exercise jurisdiction.
This is the appropriate characterisation of what occurred, and what did not occur, in relation to the Tribunal’s review of the Applicant’s case in the present matter.
In my view, there is a further jurisdictional error in the ‘findings and reasons’ of the Tribunal. This error relates to the finding, at [90] of its findings and reasons, on which it placed “considerable weight”, of the Applicant’s inability or failure to draw to the attention of the Tribunal “any references to sentences of unmarried adulteresses in excess of 100 lashes.” Such a conclusion, in my view, must necessarily require that the Applicant had, or was capable of obtaining, relevant knowledge of Iran’s Penal Code, particularly in relation to punishment for ‘unmarried adulteresses,’ as well as being capable of obtaining knowledge of similar cases. A number of matters might be said about this conclusion or adverse comment, which forms part (indeed, a crucial part) of the Tribunal’s assessment of the Applicant’s evidence.
First, Gummow J in Eshetu at [138] said that “the making of findings and the drawing of inferences in the absence of evidence is an error of law.”
Secondly, in MZYTS, at [54], the Full Court said:
We also accept that a line must be maintained between a court’s emphatic disagreement with the merits of a tribunal’s reasoning process, and the identification of a level of irrationality, unreasonableness or lack of proportionality which reveals a constructive failure to exercise jurisdiction by a tribunal. That is the distinction identified in Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 (SZJSS) at [34].
Thirdly, in SZMDS, after a lengthy discussion of the jurisprudence regarding “illogicality” and “irrationality” (beginning at [121]), Crennan and Bell JJ said, at [130] and [131] (emphasis added):
[130] In the context of the Tribunal's decision here, "illogicality" or "irrationality" sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is "clearly unjust" or "arbitrary" or "capricious" or "unreasonable" in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.
[131] What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
In the current matter, as already noted on a number of occasions, the Tribunal formed a view regarding the Applicant’s credibility in circumstances where it had not relevantly evaluated, as a matter of statutory process, either the Applicant lawyer’s email of January 2012, or the ‘independent information’ from Amnesty International in that evaluative process.
Further, as I have earlier remarked, the comparator used by the Tribunal related to knowledge of the Iranian Penal Code, and more particularly to those provisions that related to “sentences of unmarried adulteresses.” Such a comparator destined the Applicant to fail. Moreover, how a self-represented litigant could reasonably be expected to produce to the Tribunal relevant jurisprudence in relation to what the usual practice was or is in Iran regarding “sentences of unmarried adulteresses” was, in my view, “one at which no rational or logical decision maker could arrive on the same evidence.”
In addition to the above, by way of further summary, the Tribunal’s determination of a possible sur place claim was not properly detailed. In the absence of relevant reasons, the Court should not be required to guess the elements of the “thought processes” of the Tribunal as to why it thought calling the Applicant’s lawyer in Iran, and the possibility of such a call being monitored, might give rise to such a claim.
For completeness, there is nothing on the face of the Tribunal’s reasons, and in the light of relevant authority – such as Re Refugee Review Tribunal; Ex parte H - that could, in my view, give rise to an apprehension of bias. Accordingly, this ground of review is not made out.
Also for completeness, in view of the result I have come to, it is strictly unnecessary to consider the Tribunal’s treatment of the evidence of Dr Jamiel regarding the Applicant’s state of [mental] health. Suffice it to say that, absent any other evidence, and particularly given that Dr Jamiel is not a specialist (and the bases for his conclusion are not set out, as the Tribunal noted), there is no ground upon which the Court could interfere with the rejection by the Tribunal of this evidence.[35]
[35] Generally, see J. Hunter, L. Pearson, M. San Roque, Z. Steel, “Asylum Adjudication, Mental Health and Credibility Evaluation,” (2103) 41 Federal Law Review 471 – 495.
For these reasons, the decisional record of the Tribunal should be brought into this Court, a writ in the nature of certorari should issue to quash it, and a writ in the nature of mandamus issue whereby the matter should be remitted to the Tribunal requiring it to determine the matter according to law. Although she is a self-represented litigant, the Applicant should have her costs according to the scale applicable under this Court’s Rules, namely $6646.00.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 4th April 2014
Key Legal Topics
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Administrative Law
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Immigration
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Natural Justice
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