NAMO v Minister for Immigration (No.3)
[2004] FMCA 14
•23 January 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAMO v MINISTER FOR IMMIGRATION (No.3) | [2004] FMCA 14 |
| MIGRATION – Review of RRT decision – alleged denial of procedural fairness – where Tribunal found that there were numerous inconsistencies between the application and the evidence given at hearing – whether applicant was denied procedural fairness as a result of failure to provide tape/transcript of airport interview as requested by applicant – where it was disputed as to whether such tape/transcript was before the Tribunal – where RRT made a finding as to the applicant’s credibility based on the report of the airport interview – whether there was an obligation under ss.57 or 424A to provide the applicant with certain documents. |
Migration Act 1958 (Cth), ss.57, 424A
NAMO v MIMIA [2002] FMCA 229
NAAV v MIMIA [2002] FCAFC 228
NAMO of 2002 v MIMIA [2003] FCA 266
Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2
NARV v MIMIA [2003] FCAFC 262
Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82
Prasad v MIEA (1985) 65 ALR 549
Luu v MIMA [2002] FCAFC 369
NAEB v MIMIA [2003] FCA 719
Stead v State Government Insurance Commission (1986) 161 CLR 141
R v Secretary of State for the Home Department [1987] AC 514
NAAP v MIMIA [2003] FCAFC 76
MIMIA v WAFJ [2004] FCAFC 5
| Applicant: | NAMO |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ 578 of 2002 |
| Delivered on: | 23 January 2004 |
| Delivered at: | Sydney |
| Hearing date: | 12 January 2004 |
| Judgment of: | Raphael FM |
REPRESENTATION
| Counsel for the Applicant: | Mr S Prince |
| Counsel for the Respondent: | Mr T Reilly |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Court declares the decision of the Refugee Review Tribunal made on 13 June 2002 to be void and of no effect.
The court orders:
(i)That the matter be remitted to the Refugee Review Tribunal to be considered and decided in accordance with law.
(ii)The respondent to pay the applicant’s costs assessed in the sum of $4,500.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ 578 of 2002
| NAMO |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant in this matter is an Iranian citizen who arrived in Australia on 14 August 2001. He was detained on arrival and remains in immigration detention. On 24 August 2001 the applicant lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural Affairs. On 30 April 2002 a delegate of the Minister refused to grant him a protection visa and on 1 May 2002 the applicant applied for review of that decision from the Refugee Review Tribunal.
The Refugee Review Tribunal informed the applicant that it was unable to make a decision favourable to him on the papers alone and invited him for an interview. The hearing took place on 5 June 2002. On 13 June 2002 the Tribunal affirmed the decision not to grant a protection visa. That decision was faxed to the applicant in Villawood. Thereafter the applicant sought review from this court. The proceedings were heard on 4 October 2002 by me (NAMO v MIMIA [2002] FMCA 229). The applicant was not then represented. The applicant alleged that the Tribunal had not entered into its task in a bona fide manner. At this time the decision of the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 was binding upon this court. I dismissed that application. The applicant then appealed to the Full Bench of the Federal Court where the matter was heard by Tamberlin J (NAMO of 2002 v Minister for Immigration [2003] FCA 266). The appeal was heard after the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2. At that hearing the applicant was represented. His Honour concluded at [27]:
“[27] In the present case, I am of the view that the Magistrate has decided the matter having regard to principles which subsequently have been held to be erroneous because it is clear that the Magistrate decided the case on the basis of the law as it stood on 15 October 2002 as formulated by the majority in the Full Court decision in NAAV which has now been relevantly overruled.
[28] The appropriate order in this case is to set aside the decision of the Magistrate and to remit the matter for decision in accordance with law.”
When the case was argued before Tamberlin J it was not sought to further agitate the question of lack of bona fides, rather a claim was made that the applicant had been denied procedural fairness by the Tribunal. At the hearing before me this alleged lack of procedural fairness was particularised in the applicant’s amended application and in his counsel’s submissions as being constituted by:
i)The failure by the Tribunal to provide the applicant with certain material which would arm him to defend himself to answer the Tribunal’s questioning as to alleged prior inconsistent statements. The material in question is said to be:
(a)the tape recording of the applicant’s initial interview with departmental officers at Sydney Airport;
(b)Information provided by UNHCR to the department concerning the applicant’s sojourn in Turkey;
(c)A document (now found at [CB 68]) detailing the applicant’s entries and exits from Turkey between 1997 and 2002.
In addition it was argued that the Tribunal was wrong not to carry out retranslation of the tape recording of an interview between the applicant and a Mr Jago of the department on 6 September 2001 in respect of which the applicant had alleged there were certain interpretation errors. It is the applicant’s case that where a decision is so heavily dependent upon findings of credibility as this one is any procedural unfairness that contributes towards adverse findings on credibility should ground review. The applicant claims support for this view from the decision of the Full Bench of the Federal Court in NARV v Minister for Immigration [2003] FCAFC 262 at [17] quoting from Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 122 per McHugh J:
“Once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome because it is no easy task for a court … to satisfy itself that what appears on its face to have been a denial of natural justice could have had no bearing on the outcome.”
In order to put these matters in context it should be stated that the applicant claimed to have had a well founded fear of persecution for the convention reason of political opinion arising out of involvement in a well documented student protest which took place in Tabriz in July 1999. He claimed that he had joined in the demonstration and had discovered that it had been filmed. He stated that the next day his father had contacted him on his mobile phone and told him that police had been at the house looking for him. His father counselled him to escape to the Turkish border as soon as possible, which he did. He claimed that Turkey became his country of residence until he left it for Australia in 2001. He did travel away from Turkey from time to time and his movement record as produced by the Turkish authorities is one of the documents which he believed he should have been shown.
The applicant also claimed to have some involvement with the communist sympathising group the FKO in 1981 or 1982 and that there was continued suspicion about him in Iran for that reason.
When the applicant sought asylum in Australia he appointed RACS as his migration agents. That organisation was told by the applicant about his concern in relation to the translation of his airport interview and the statement which he signed on 21 August 2001 [CB 39-40]. RACS wrote to Mr Jago of the department on 9 April 2002 requesting a copy of the tape or transcript of the alleged conversation [CB 76]. This was not provided. Neither the tape nor a transcript of it appears as a document contained within the department files sent to the Tribunal.
On 28 March 2002 Mr Jago wrote to the applicant as follows:
“Dear Applicant
I am writing in relation to your Protection visa application lodged on 24 August 2001.
I have received information from the UNHCR in Turkey that they have no record of you but they have confirmed that you have resided in Turkey. There are several matters that I need to put to you related to this issue.
In your application you claim that you were in Turkey for just over two years and that you left every three months in order to get a further three months period back in Turkey. Sometimes you went to Syria and on two occasions you went to Malaysia. You also claim that you threw your Iranian passport away after about 12 months after you entered Turkey because it had expired.
As your entry interview with immigration officers at Sydney Kingsford Smith Airport on 14 August 2001 you claimed to speak Farsi, Turkish and a little English. You also advised that your parents speak only Turkish. In your Protection Visa application you claim to speak only Persian (Farsi).
The above information will be taken into account in determining the credibility and well-foundedness of your claims and is significant in determining whether you meet the criteria for a Protection Visa. You may consider providing answers to the following queries. Firstly, why you were in Turkey for over two years but did not apply for assistance or status as a refugee with the UNHCR. Secondly, there appears to be a closer association between you and your family with Turkey than has been indicated in your application. Thirdly, details of your trips to Syria and/or Malaysia, including travel documents used, would assist in understanding how you were able to travel without a passport.
If you want to comment in this information, you should do so in writing. If you want to submit documents that are not in English, you should also submit English translations of those documents. For information about providing translated documents, please contact the Translating and Interpreting Service on phone number 131 450. You can ask for an interpreter to help you with your inquiry.
You have three working days from receipt of this letter to send your written comments to me at the address below. As this letter has been faxed to you today you should respond to me by 4 April 2002.
Onshore Protection
Department of Immigration and Multicultural Affairs
Locked Bag Number 8
HAYMARKET NSW 1240
Or, fax to: 9219 7648
Please note that if you do not respond to this letter the Department may decide your Protection visa application on the basis of the available information.
Your sincerely
Brian Jago
Onshore Protection, NSW
9219 7803
28 March 2002
cc: Mr Graham Jones
R.A.C.S”
On 5 April 2002 a further letter was sent in the following form:
“Dear Applicant
I am writing in relation to your Protection visa application lodged on 24 August 200.
I have received information from the General Directorate of Security in Turkey regarding their entry and departure records concerning yourself. They have confirmed that you have resided in Turkey. The first entry record I am advised of is that you entered Turkey at Gurbulak on 28 February 2000. Information from shows that Gurbulak is the Turkish border crossing closest to Bazargan on the Iranian border. Bazargan is the crossing point where you claim you left from Iran in July 1999. There is no record of this having occurred in July 1999.
The record also shows that you departed Turkey at Gurbulak on
5 October 2000 and re-entered Turkey on 6 August 2001 at Gurbulak. This is period of ten months outside of Turkey and in Iran.
The record also shows that you entered Turkey at Ataturk International Airport on 16 June 2000, departed from this airport on 8 July 2000 and entered Turkey again at this airport on 5 August 2000.
In your application you claim that you were in Turkey for just over two years and that you left every three months in order to get a further three months period back in Turkey. You have claimed that sometimes you went to Syria and on two occasions you went to Malaysia. You also claim that you threw your Iranian passport away after about 12 months after you entered Turkey in July 1999 because it had expired.
The above information will be taken into account in determining the credibility and well-foundedness of your claims and is significant in determining whether you meet the criteria for a Protection Visa. You may consider providing answers to the following queries. Firstly, there is no record of you being in Turkey prior to 29 February 2000. Secondly, your entry and exit to and from Turkey would require a travel document twelve months after your claim to have thrown your Iranian passport away. Thirdly, confirmation of your travel to Syria does not exist. Fourthly, your travel to Malaysia was probably taken at the time of your Ataturk travel. Fifthly, you are shown to have availed yourself of the protection of Iran when you departed Turkey at Gurbulak on 5 October 2000. Sixthly, an explanation is required as to where you were and what you were doing between 5 October 2000 and 6 August 2001.
It is also noted that your application fails to provide details of the addresses you lived at or your travel details after July 1999. These details should now be corrected.
If you want to comment in this information, you should do so in writing. If you want to submit documents that are not in English, you should also submit English translations of those documents. For information about providing translated documents, please contact the Translating and Interpreting Service on phone number 131 450. You can ask for an interpreter to help you with your inquiry.
You have three working days from receipt of this letter to send your written comments to me at the address below. As this letter has been faxed to you today you should respond to me by 10 April 2002, at
Onshore Protection
Department of Immigration and Multicultural Affairs
Locked Bag Number 8
HAYMARKET NSW 1240
Or, fax to: 9219 7648
Please note that if you do not respond to this letter the Department may decide your Protection visa application on the basis of the available information.
Your sincerely
Brian Jago
Onshore Protection, NSW
9219 7803
5 April 2002
cc: Mr Graham Jones
R.A.C.S”
RACS replied on the applicant’s behalf on 9 April commenting in regard to the UNHCR that he did not pursue this avenue of assistance because he was aware that a number of Iranians were living in Turkey and after five years had not managed to obtain the required papers. He commented in regard to the movement details that he had paid a people smuggler to regularise the situation and a cousin had also assisted to place the necessary stamps in his passport and record entries on a computer system in February 2000. The applicant pointed out that he had not travelled to Syria every three months. The only occasion upon which he had travelled to Syria he was returned from the border through lack of a visa. The letter from RACS appears to have been accompanied by a letter from the applicant translated [CB 80-82].
The delegate declined to grant the applicant a protection visa and the applicant sought merits review from the Refugee Review Tribunal. Very shortly before the scheduled date for the Tribunal hearing the applicant changed his migration agent. The new agent made a detailed submission on his behalf [CB 125-131]. This submission dealt with certain matters upon which the applicant’s previous evidence had appeared to the delegate to have been inconsistent. It discusses the question of whether the applicant’s father came to the border with him, it confirms that that the applicant did not travel to Syria every three months and that this was a mistake in translation and refers to the applicant’s reasons for declining to seek assistance from the UNHCR.
At the hearing before me the applicant produced as annexures to the affidavit of Keryn Ellis transcripts of the tape recordings of the Tribunal hearing and of the hearing before the delegate. The hearing before the Tribunal commenced with a lengthy submission by the applicant’s migration agent advising the Tribunal that the applicant had complaints about the statement filed on his behalf in support of his application, which he said he had never read or had translated to him, about the Afghan interpreter who appeared with him at the interview with the delegate and the length of time that the adviser had spent with the applicant. The applicant criticises the Tribunal for saying at [T 4.5]:
“Ms H, it is a common claim to say that the application for a protection visa wasn’t filled out properly or that the original statements taken weren’t interpreted properly and all these problems seem to come about after the delegate has already made the decision and may have been refused. And then before they come to the RRT everything is changed or it has been misinterpreted or has been mistranslated. He has been interviewed three times. He was interviewed again by his migration agent when he filled out his application for a protection visa and he was interviewed by the delegate prior to making the decision. At no time did he say that he had problems with the interpretation at his migration agent.”
The discussion between the adviser, the applicant and the Tribunal went on until [T 9]. It would appear that the problems between the parties were resolved with the following statements from the Tribunal:
“RD:Reading the statement, I’m not going to say it is the best statement that I have ever received but at least it is succinct and to the point unlike some other statements that I have seen which rambled on and on and on for thousands and thousands of words. In my view it’s not one of the worse statements that I have ever seen either, I’ve seen some absolute horrors, um, but as I said you know, reading this statement, it is succinct, it is clear and it makes the points that I would have thought that what the applicant wanted to make. But we can conduct the hearing on the basis that for the nots, we will not take into account the protection visa and the statement. But I will still have to make my own decision as to whether or not I take it into account on some later date. So how do you want to proceed, shall we do it on that basis? Will I listen to the applicant and hear what he has to say? What happens if he comes up with new claims which have never been mentioned before or if he comes up with claims which are manifestly inconsistent with previous evidence and submissions that have been made? …
Ms H: Well in the initial interview again, I understand that it is the tribunal position to make its way to come to a decision. But there are also tribunal members that are willing to disregard the initial interview due to certain circumstances, the anxiety and the pressure on the applicant, and lots of other issues. So I understand that you have all the liberty to make your way to your decision. But what I am asking here is to give him a fair chance, that’s all. You have the liberty to disregard whatever we are talking about today and stick to all the contradictions, this is my point, all the contradictions that are existing, lots of them have been cause by misrepresentation or inadequate representation. That’s my point. So if you are willing, you an just judge for yourself, which is your position of course but give him a fair chance that’s all I am asking.
RG: We will continued ahead on the basis that I will listen to what the applicant has to say but I reserve any decision at all about whether or not I accept previously given information as being accurately or not.
Ms H: All the previous information at this stage, a statement that was provided in the early stage under that circumstances that’s what I find (unsure).
RG: I will take into account your submissions but I won’t make a decision at this time about it.
Ms H: Thank you for giving me the opportunity.”
At [T 11/12] a discussion takes place between the Tribunal and the applicant concerning his alleged membership of a Marxist organisation. The Tribunal asks why no mention of it was made at the initial interview at the airport. The applicant responded that he wasn’t asked for explanations and it was only hinted at and passed by. The Tribunal stated that the applicant made no hint of belonging to any organisation in this interview. The applicant demurred and the Tribunal said:
“No there is no record of that in either the tapes which I have listened to or the record of that interview that you made such comment.
A: As far as I can remember I have said this that I was a supporter of the F(?) Majority at the time as far as I remember.”
The applicant maintains that this exchange related to the tape of the interview at the airport. He argues that if there was a tape which the Tribunal had heard it should have given a copy to the applicant who had asked for it through his migration agent some considerable time before. The respondent counters that there is no evidence that the Tribunal or even the delegate had this tape and therefore the Tribunal could not have been referred to it. The applicant says that in those circumstances the tape should have been called for by the Tribunal and a copy given to the applicant. It is certainly correct to say that there is no reference to any Marxist organisation in the record of interview [CB 39]. At [CB 140] the Tribunal sets out the documents which were before it. No reference to the tape of the interview at the airport is made.
This matter came before me for an interlocutory hearing at which the applicant was making a request for the airport tape. At that time the Minister put most forcefully to me that the airport tape was not before the Tribunal and upon that basis I made a decision not to make an order that it be produced. I have not heard anything further which would convince me that the tape was before the Tribunal. This matter is dealt with by the Tribunal at paragraph 60 of its decision [CB 149].
At paragraph 73 [CB 153] and paragraphs 83 and 84 [CB 155]. At paragraph 100 [CB 159] the Tribunal deals with the matter in its findings and reasons:
“The applicant was asked about the claim at the hearing of 5 June 2002. He was asked why there was no mention of the claim in his initial interview. The applicant claimed that he was not asked, but that he hinted at it by saying that he was involved with an organisation 19 years ago. When it was put that there was no such hint or mention, he claimed that he had said he supported the Fedayeen at the time. There is not such mention of any such claim in the record of the initial interview. In light of the applicant’s inconsistent and contradictory evidence, and that the fact that no mention had been made in his initial entry interview, I am unable to accept that the applicant was a member or associated with the FKO, or that he was detained by the authorities and mistreated because of any membership or associate with the FKO.”
At paragraph 114 the Tribunal made an important finding [CB 162]:
“I am unable to accept that the applicant was involved in any political activities in Iran. I am unable to accept that the applicant was involved or was a member of the FKO in 1981 or 1982.”
The Tribunal advances no other ground for not accepting the applicant’s statement that he had made mention of his membership of FKO at the initial airport interview. The Tribunal made a finding concerning the applicant’s credibility based upon the report of the airport interview alone. The applicant, through his advisers, had understood the importance of the airport interview and asked the department for a copy of the tape. This was refused. I am of the view that when an organisation has it in its power to clear up completely a disputed fact without unreasonable difficulty (as was the case here) then to decline to take the necessary steps to clarify the dispute and to make a finding against the applicant in the absence of that clarifying material constitutes a failure to provide the applicant with procedural fairness. In Prasad v MIEA (1985) 65 ALR 549 at 563 the failure to proceed in the absence of obvious material that was readily available was described as an “exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.” This was approved by the Full Bench in Luu v MIMA [2002] FCAFC 369 at [28]. It seems to me that the failure here falls into that category.
Tangentially connected with the matters discussed above was the issue of whether or not the applicant had told the delegate that when the authorities came to arrest him at his house in July 1999 they found illegal books and materials. At paragraph 112 [CB 162] the Tribunal in its findings and reasons states:
“This claim had never been made before.”
The Tribunal goes on to discuss another claim made by the applicant which it deals with at paragraph 113:
“In any case, I am unable to accept the applicant’s claims in this respect. The claims were made at the end of a long hearing and had never been mentioned before and in the light of my other findings would appear to lack any veracity or credibility. I am of the view that they were fabrications and elaborations to enhance the applicant’s claims to be a refugee.”
It is now accepted that the Tribunal was in error and that during the discussions with Mr Jago the following evidence was given by the applicant:
“Then when I was at home, my father called me and said they have stormed in three times looking for you. Then I understood that this is from when they have filmed. Within their search of place, when I ask my father did they take something with them, he said yes, they have taken books that you have, books that were given to me by my friends and they were critical against the government.”
The Tribunal had this tape but it had not been transcribed. At [T 36/37] the following exchange takes place:
“JS: When I was in university my mobile battery was finished and I had turned it off. When I was in Tehran at twelve o’clock at night my father rang me and told me that the authorities had gone to our house for me. And my father said that my problem was big now. He said to me under no circumstances I should go home. He said to me that I should go directly to the border of Bosigone because the authorities have found some publications, some books in our house.
RG: Really? Well this is something we have never heard about before, Mr S?
JS: About books?
RG: Yes, that’s right.
JS: I have said that at the interview.
RG: No you haven’t.
JS: I have written whatever I have said in my tapes at my interview from my tapes.
RG: And I have listened to the interview tapes and you mention nothing about books in the interview…” (emphasis added)
The applicant next states that the Tribunal did not comply with s.424A of the Migration Act 1958 (Cth) (the “Act”) because it did not provide the applicant with the actual movement record now found at [CB 68]. The first point to be made about this claim is that the movement record was a matter that was referred to the applicant by the delegate who informed him of it pursuant to the delegate’s responsibilities under Regulation 2.15 of the Act being information that the delegate would be using in making a decision on the protection visa application. The reference would more properly have been made to s.57 of the Act. Section 57 is in the following form:
“Certain information must be given to applicant
(1) In this section, relevant information means information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for refusing to grant a visa; and
(b)is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and
(c)was not given by the applicant for the purpose of the application.
(2) Subject to subsection (3), the Minister must:
(a)give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and
(b)ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and
(c)invite the applicant to comment on it.
(3) This section does not apply in relation to an application for a visa unless:
(a) the visa can be granted when the applicant is in the migration zone; and
(b) this act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.”
The respondent argues that the letter sent by the department to the applicant and his advisers on 5 April 2002 [CB 72-73] does provide the necessary particulars and that the delegate was not required to provide the applicant with the documents found at [CB 67] and [CB 68]. It would appear that the applicant was arguing that the failure that has been identified in respect of the delegate’s action was carried through to the action of the Tribunal where it became a failure to comply with s.424A of the Act. That section is in substantially the same form as s.57 produced above. I am satisfied that the particulars provided by the delegate to the applicant correctly identified the relevant information in the documents received from the Turkish authorities. The only way in which it is said that the applicant could have been advantaged by having the actual document was that this would show two entry records, one on 28 February 2000 and one on 16 June 2000 with no apparent departure in between. The applicant claims that had he seen the document he could have used it to indicate that there was some error in the record. However, at the hearing he accepted the correctness of the movement record as representing what the Turkish authorities had been told but indicated that he had arranged for that movement record to be interfered with by various persons including a member of his family. In other words the movement record accurately represented what was in the records but did not represent his movements. It is therefore difficult to see what use the applicant could have made of the apparent discrepancy or loss of one departure. The importance of the document was that it convinced the Tribunal that the applicant had not entered Turkey until the year 2000, some considerable time after the events in 1999 that the applicant said led to his flight. This discrepancy is made quite clear in the second paragraph of the letter from the department found at [CB 72].
The final matter relates to the UNHCR information. The applicant argues that this is information which should have been given to him under ss.57 or 424A. The problem with this assertion is that the applicant cannot indicate what information the Tribunal or the delegate had which he did not see. The letter from Mr Jago found at [CB 63] says relevantly:
“I have received information from the UNHCR in Turkey that they have no record of you but they confirmed that you have resided in Turkey.”
It goes on:
“You may consider providing answers to the following queries. Firstly why you were in Turkey for over two years but did not apply for assistance or status as a refugee with the UNHCR.”
I have already pointed out that the applicant responded to this question specifically in a statement found at [CB 80] and I note that there is nothing in the findings and reasons of the Tribunal which refers in any way to the UNHCR. The applicant’s failure to deal with that organisation did not form part of the Tribunal’s reasons for decision. The applicant says that if he had had all the information which the UNHCR gave to the delegate then he might have been able to use it to prove that he was in Turkey in 1999 and therefore belie the findings of the Tribunal that he did not enter Turkey until 2000. The respondent says that there is no evidence that there is such a document and the information could have been passed to the delegate by telephone. There is nothing indicated in the departmental file concerning the delegate’s contact with UNHCR other than that which is contained in the letter. I am not able to say from what is in my possession that the Tribunal or the delegate did not comply with their obligations under ss.57 or 424A and that the letter which was sent by the delegate was not an accurate particular of the relevant information. Accepting that the applicant does not have to jump the hurdle of an onus of proof he is still required to make his own case: NAEB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 719 at [62]. The applicant knew about the UNHCR information long before the hearing at the Tribunal. He had a well respected migration agent in RACS. He could have instructed that agent to make enquiries on his behalf of UNHCR in Turkey or he could have instructed the agent to write to the delegate and ask the delegate whether the UNHCR had indicated to him when the applicant arrived in Turkey or the date upon which the UNHCR became aware that he was resident in that country. The applicant did neither. I am not prepared to make a finding that the delegate had information about these matters which he did not pass on to the applicant or to his advisers.
The applicant accepts that the gravamen of the Tribunal’s decision was that his claims were not credible as they were based upon events which caused him to leave Iran in July 1999 whereas the written evidence indicated that he had not left that country until February 2000. These matters are discussed at [CB 158] where at [97] the Tribunal says:
“[97] Further discussion ensued on this claim, with the applicant giving complicated and convoluted explanations as to how some of his movements were entered in the computer, how others were not and how he undertook some trips and not others. It was the applicant’s evidence that the computer records were correct but not true, that the applicant had the services of the smuggler who had access to exit stamps, renewal of visas and the computer records. He finally claimed that everything could be obtained by bribery in Turkey and Iran.
[98] I am unable to accept the applicant’s story. I am of the view that the applicant has fabricated this inconsistent, contradictory, incoherent, complicated and convoluted story about his entry and exit into Turkey and Iran because the computer records seriously undermine his claims of persecution in Iran. I accept that the Turkish government’s computer records of the applicant’s entries and exits into Turkey are accurate and correct. I am unable to accept that the applicant was able, through the assistance of smugglers to alter the records as he has claimed. I am unable to accept that the applicant entered Turkey in early July 1999 as he claimed. I accept that the applicant entered Turkey for the first time in February 2000. I accept that the applicant went several times to Malaysia. I accept that the applicant left Turkey and entered Iran in October 2000. I accept that 10 months later, in August 2001, shortly before coming to Australia, the applicant entered Turkey from Iran.”
In the following paragraphs the Tribunal deals with other claims made by the applicant and gives its reasons for not accepting them. It is fair to say that inconsistencies between earlier statements and things said by the applicant at the hearing featured prominently in the Tribunal’s reasoning. I have already noted the error contained in paragraphs 112 and 113 concerning the evidence about the finding of the books. The Tribunal sums up its views about the applicant’s claims at paragraphs 114 and 115:
“114. I am unable to accept that the applicant was involved in any political activities in Iran. I am unable to accept that the applicant was involved or was a member of the FKO in 1981 or 1982. I am unable to accept that the applicant was involved or participated in the student demonstrations at Tabriz university in early July 1999. As I am unable to accept that the applicant was ever in political activities, I am unable to accept that he was wanted by the authorities, had to ‘escape’ from Iran or that his name was placed on a wanted list. I am unable to accept that the applicant Turkey in July 1999, although I do accept he entered Turkey in February 2000. I accept that the applicant returned to Iran in October 2000 and re-entered Turkey again 10 months later in August 2001. I accept that a week later, he entered Australia. I am unable to accept that the applicant’s father signed an undertaking in 1981 or 1982, that his house was searched and compromising books and other materials were found, that his father was detained for one week or that the applicant has been accused of supporting, financing and provoking the university students. (emphasis added)
115. As I am unable to accept that the applicant was involved in political activities in the past in Iran, I am of the view that the chance that he would be involved in political activities in the future that would bring him to the adverse attention of the Iranian authorities is remote. Accordingly, I am not satisfied that the applicant has a well founded fear of persecution for reasons of his political opinion in Iran or that he has a well founded fear of persecution in the foreseeable future for his political opinion if he returns to Iran.”
It is clearly open to a court reviewing the Tribunal’s decision (or an appellate court considering the primary Judge’s findings) to come to one of two opposing views. The first view would be that any error made by the Tribunal about the applicant’s credibility in respect of a statement concerning the search for books had no effect upon the Tribunal’s substantive findings and therefore the court could be satisfied that “the breach could not have affected the outcome.” But equally, because of the way in which the claim about the books is interwoven with the other findings concerning the movements about which the Tribunal was clearly entitled to come on the evidence before it, a court might say that it did not have the necessary confidence required by McHugh J in Aala citing Stead v State Government Insurance Commission (1986) 161 CLR 141, 145. I am sensible of the remarks made by Lord Bridge in R v Secretary of State for the Home Department [1987] AC 514 at 531:
“The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”
The respondent argues that I should follow the decision in NAAP v Minister for Immigration [2003] FCAFC 76 at [37] but I do not think that there is as much similarity in the argument in these cases as there is in the facts. The Full Bench in NAAP was looking at “unreasonableness as to jurisdiction” which it held could not be found in a single erroneous finding of fact. But what is being looked at in this case is both that error, which impacted upon the Tribunal’s view of the applicant’s credibility and the failure to provide him with procedural fairness in excluding him from obtaining a transcript of his initial interview, which he told the Tribunal had not been précised correctly, but upon which the Tribunal relied to indicate inconsistencies. It is possible that the tape would have confirmed the truth of some or all of the applicant’s claims about what he had said at his arrival interview. This may well have made his evidence more plausible. When this possibility is combined with the “single erroneous finding of fact”, which also affected the applicant’s credibility, I believe it militates in favour of a decision to set aside the finding of the Tribunal and to remit it for reconsideration in accordance with law. I am not satisfied that the two errors taken together constitute breaches that could not have affected the outcome. It would be more consistent with Lord Bridge’s dicta to remit than to allow the findings to stand. I believe I receive support in this decision from the views expressed by RD Nicholson J sitting as a member of the Full Bench in MIMIA v WAFJ [2004] FCAFC 5 at [121].
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Raphael FM
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