SZEUT v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1511
•26 OCTOBER 2005
FEDERAL COURT OF AUSTRALIA
SZEUT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1511
MIGRATION – lack of satisfaction with appellant’s credibility
Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth)Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59
NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975SZEUT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR
NSD 1317/2005
GRAHAM J
26 OCTOBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1317 OF 2005
BETWEEN:
SZEUT
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
GRAHAM J
DATE OF ORDER:
26 OCTOBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
2. The Appellant pay the First Respondent’s costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1317 OF 2005
BETWEEN:
SZEUT
APPELLANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTREFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
GRAHAM J
DATE:
26 OCTOBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The Appellant, who is identified for the purpose of these proceedings as SZEUT, was apparently born in Iran on 22 December 1970.
He is an Iranian citizen to whom a passport was issued on 12 March 1994.
It would appear that he was granted an Australian entry visa in Tehran on 12 October 1994 which permitted him to arrive in Australia no later than 31 October 1994 and to remain in Australia for one month from the date of his arrival. This was a class UA visitor visa.
The Appellant contends that he left Iran on 28 October 1994. He appears to have arrived in Malaysia on 29 October 1994 being permitted to remain there until 11 November 1994. On 7 November 1994 a further Australian entry visa would appear to have been issued to the Appellant in Tehran permitting him to arrive in Australia no later than 31 December 1994 and to remain in Australia for one month from the date of his arrival. This visa was also a Class UA visitor’s visa. How the visa came to be issued in Tehran after he had already left Iran was something of a mystery but it appears that the Appellant posted his passport to his father in Iran from Malaysia to have the new visa issued, whereupon it was posted back to him in Malaysia.
On 10 November 1994 the Appellant arrived at Sydney airport and has remained in Australia ever since.
On 9 December 1994 the Appellant would appear to have been issued with a Class UA bridging visa permitting him to remain in Australia “until 28 days after notification of primary decision or decision by a review authority or withdrawal of application in respect of” a certain application.
On 13 April 1995 the Appellant applied for a Protection Visa (866). That application was apparently accompanied by a statement by the Appellant nominating as his reasons for making same:-
“1.My life would be in imminent danger if I am to be returned to Iran since I am well known by the opposition groups in Iran, specifically the Mojahedine organisation of Iran.
…
3.I have always been a Moslem and a supporter of the Islamic regime.
5.(sic)Due to my beliefs I provided support to the Iranian authorities in the form of providing information about the members and activists of Mojahedin organisation.
6.I carried out these activities for a long time until eventually I gained a reputation as a spy for the government.
7.Some members of that opposition party who recognized me started to issue threats against me.
8Initially, I did not take the threats seriously but recently my enemies have indicated that they are really determined to harm me.
9.I am not able to go back to Iran because the Iranian Government cannot protect me. It can not do so because the people who have identified and threatened me live underground.
10.I have tried to hide from them but everywhere I go, my feeling is that they will hunt me out and find me.
11.If I am forced to return to Iran I believe the opposition groups will take full revenge against me for my support of the Islamic regime.”
On 11 December 1996 the Appellant attended upon a Delegate of the First Respondent Minister to be interviewed so that his claims could be assessed.
A transcript of the Appellant’s interview with the Delegate has been included in the appeal papers and runs to 10 ½ pages of closely typed script.
In the course of the interview the Appellant gave evidence about his collection of information, tracing and pursuit of suspicious persons and transfer of the information so obtained to the authorities. He also stated that he was “personally involved in one of the operations for arresting Mujahedeen”. He was asked numerous questions including the following to which he provided answers as set out hereunder:-
“Q:And you continued your involvement with the Pasdaran until you left Iran, is that correct?
A:I was still active so that they mightn’t suspect I was going to leave the country. Because if they would suspect that I was going to leave the country, I would have been threatened from two sides, the Sepah and the Mujahedeen. So, I kept this all secret till I left the country.
Q:What do you mean? You said that you continued working with them because you didn’t want them to be suspicious and you didn’t want them to make trouble for you, What do you mean?
A:As you know my life was threatened by the Mujahedeen and if I would want to leave the country, the Sepah would prevent it because they would think I might have been one of the infiltrates of the Mujahedeen or might want to work with them. So, I had to work with the Sepah during this period and keep my intention of leaving the country confidential from the Sepah. The members of the Sepah are not allowed to leave the country except for special missions assigned to them. If they would suspect that I had the intention to leave the country, without any doubt I would have been arrested and in spite of all my years of service I would have not been able to prove that I had had no connections with the Mujahedeen and just to save my life, I would have done that.
Q.Why did you escape from Iran?
A.Because as I have brought it in my case, I got telephone calls from Mujahedeen, they called me and said that they knew in what kind of work I was involved in and that I were a member of the Sepah and I was involved in collecting intelligence etc. They called and told me that they wanted me to work with them; otherwise I would lose my life. I asked them about the kind of cooperation they were demanding. They were asking for the rough plan of our base and the names of those who were working with me in this connection.
Q.Wouldn’t the Pasdaran protect you?
A.I officially transferred whatever I received to my superior and they wanted to protect my life. But as you know, very prominent people with a great number of guards have been assassinated. There is no security against terror.”
The Appellant puts his case on the basis that the Sepah is synonymous with the Pasdaran.
By letter dated 14 January 1997 the Minister’s Delegate wrote to the Appellant indicating that his application for the grant of a Protection Visa (866) had been refused as he was not a non-citizen in Australia to whom Australia had protection obligations under the United Nations Refugees Convention as amended by the Refugees Protocol. The Convention relevantly defines a refugee as any person who:-
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.” [Emphasis added to record the basis on which the Appellant put his case for refugee status]
On 28 January 1997 the Appellant applied to the Refugee Review Tribunal (“the RRT”) for review of the decision of the Minister’s Delegate. His reasons for making the application were expressed as follows:-
“I disagree with the decision because it doesn’t go with my understanding of my people and country which is in a deep oppression. As you might know, I was carrying on political activities prior to coming into Australia. Therefore it will not be possible to go back to Iran, otherwise I can suffer an execution or life imprisonment. I would be more than happy to explain about the current situation in details at the interview. Thank you.”
By letter dated 18 September 1997 the RRT invited the Appellant to attend a hearing on Tuesday 21 October 1997. A transcript of the evidence given by the Appellant to the RRT running to ten and a half closely typed pages has also been included in the appeal papers. The transcript included the following questions and answers.
“Q: You said that you received threats from Mujahedin?
A: Yes.
Q:And they had said they would kill you if you wouldn’t cooperate with them, in what ways did they want you to work with them?
A:They wanted me to submit to them the names of those working with me, my commander’s name and the design or plan of our headquarters. They also wanted to know where their forces are first transferred to, when arrested.
Q:What headquarters were you based at?
A:In Khanevadeh St. Vali Asr garrison. But the first place where I first applied for membership in Sepah was in Kheradmand St.
Q:These are in Teheran?
A:Yes.
Q:Why would Mujahedin put their hand on you?
A:I don’t know why, because if I would know I would have done something to defend myself. I even didn’t know how they have found that I was a member of Sepah.
Q:How many times did they contact you?
A:Twice. On phone.
Q:And how do you know they were Mujahedin?
A:The first time as they called me and asked about those information which I mentioned before, I thought they might be my friends trying to tease me, then they said they would call again in about ten days. They told me further that I should keep this confidentially. If the commander or anybody else would be informed they could easily kill me.
Q:It is difficult for me to believe in the concept, that Mujahedin would be able to kill you as a member of Pasdaran. Let me explain why. The Tribunal tries from a variety of sources, from the Department of Foreign Affairs, the United Nation High Commission for Refugees, from the Human Rights Organization called Amnesty International and from separate Human Rights Organization called Human Rights Watch Committee. All these sources of information indicate that the Mujahedin are severely suppressed in Iran. My position, my question is, how would they be in a position to expend the resources of taking action against an individual from Pasdaran when they are so suppressed?
A:The information presented by those Organizations is just written ones, and what is said about them being suppressed is true, they have recently been suppressed. But even now, I think they are still very much active but secretly. Regarding the point you mentioned that they wouldn’t be in a position to have adequate information to kill someone, as you know there have been many kings and presidents protected by special guards who have been easily assassinated by small groups of plotters. And they can easily identify the individuals opposed to them through the photos in newspapers in Iran. There have been members of Pasdaran who have been assassinated by Mujahedin. Even now there are Pasdarans tortured or killed by the Mujahedin, whose photos are exhibited yearly in revolutionary ceremonies. …”
…
Q:Did you tell your commanding officer in Pasdaran that these threats have been made against you?
A:Yes. I did, first I thought it might have been from my friends intending to tease me, at the same time I was thinking that it might have come from the Pasdaran themselves in order to check my reaction. So, because I was afraid of my life I informed my commander.
Q:And what did he say?
A:The commander told me I shouldn’t be worried much about the phone call I had received and by the next call I should ask their demands and try to come to an agreement with them somehow. Then he assured me of my life and said that through the Pasdaran there shouldn’t be any problems threatening my life.
Q:What did you tell them about the second phone call?
A:The second call was under control. My calls were under surveillance from the date when I first informed my commander and as soon as I received the second call, I informed him immediately.
…
Q:… what did the Mujahedin say to you in the second call?
A:During the second call they asked me to take the documents, the design and plans of the garrison they had asked in the first call, for them to Azadi Square at 4 o’clock.
Q:Which garrison is that?
A:My own garrison.
Q:Which one is that?
A:As I mentioned before it was Vali Asr.
…
Q:How long after the phone call did they want you to go to the Freedom Square?
A:It was three hours after the phone call on the same day.
Q:And did you do that?
A:With coordination with my commander, he told me to go to the appointment and go to meet them without any concerns because the whole area was under surveillance.
…
Q:Did you go to your appointment?
A:I had to go and I went.
Q:And what happened there?
A:There I realized that the telephone calls I had received were not fictitious. Then I was terribly afraid because I thought I might get assassinated.
Q:I understand that, but what happened there actually?
A:When I went to my appointment they didn’t turn up, even for about ½ to one hour I was waiting. Then I came back home with the person responsible for me. It was organized in a way that Mujahedin wouldn’t think that I had taken someone with me.
Q:Did the Mujahedin contact you after that?
A:After that they didn’t contact me any more. At that night I stayed at the garrison because I was scared, then on the following day I was accompanied home with my Sepahi friends to see my family. When I found my family safe, I told my friends to go and everything was o.k. and after that I came to the conclusion that for present, the safest place for me would be my garrison. After they left, because I told them they could take the vehicle with them, I was just crossing the road, so I could find a way to go back to garrison, and the street had a normal, quiet traffic, there were only few in the distance of 50 to 60 metres or a bit more from me, when I was passing the zebra crossing, there was a white Chevrolet that all by a sudden speeded up towards me. I was shocked for a few seconds, as I tried to pull myself from the street, I was hit by the car and thrown off. In that accident most of my teeth were broken. My head and my nose as well. Fortunately my commander had left without my knowledge, a few of my friends to keep an eye on me.
…
Q:…If they cared what they could, why would they suspect you to be one of Mujahedin?
A:Because according to the telephone calls I received, and the documents they had demanded from me how they could trust me, especially if they would find out that I also intended to leave the country. They wouldn’t think that I was leaving because I was saving my life.
Q:But they clearly trusted you?
A:If they wouldn’t trust me they wouldn’t protect me.
Q:But so why would they suddenly suspect you being involved with Mujahedin?
A:When I would leave the country without notice, how would they know that I were honest and I wanted to cooperate with Mujahedin. People who work in Sepah or in the military, have their special passports. They don’t give them to everybody. They are given through the high commanders only to those going on special missions. They can leave the country only once with those passports.
Q:According to our information, a member of Pasdaran has to obtain permission to leave the country.
A:I am saying the same thing.
Q:I agree. But my problem is that according to my information, when you don’t have that permission, you will be stopped at the airport?
A:Through the family friend and the money I had paid to get a normal passport. This passport is not a fake one but it is illegal to be given to military or Sepah personnel. I spent a lot of money to get this passport. Then it took me about six, seven month to find a person who could provide me a visa to leave the country. I have paid 900,000 Tooman to get the visa and I paid another 500,000 toomans extra to get through without being checked at the exit. The passport was only stamped for the exit.
Q:Did you pay any money for the passport?
A:Yes. 1,200.000 Toomans. This was my whole savings together with my father’s which had to be spent in this way.
…
Q:What do you think would happen to you if you go back to Iran?
A:if I go back to Iran, My initial fear was in relation to Iran, that has been nearly gone away but I am very much afraid of Pasdaran. Because when I came here and realized what they are doing, and with all the things I heard here, if I go back, without any doubt, I will be 100% killed.
…”
By letter dated 28 November 1997 the RRT wrote to the Appellant informing him that it had decided that he was not a refugee. It said:-
“The Tribunal has decided that you are not a refugee, which means you are not entitled to a Protection Visa.
I enclose a copy of the Tribunal’s decision and reasons. …”
The RRT’s reasons commenced with a section headed “BACKGROUND” followed by “THE LEGISLATION” and then “THE REFUGEES CONVENTION”, “CLAIMS AND EVIDENCE”, “FINDINGS AND REASONS”, “CONCLUSION” and “DECISION”. The reasons were expressed in 18 pages of typed script. In recounting the Appellant’s claims the RRT said, inter alia:-
“When the applicant and his Pasdars colleagues were crossing the road (at a Zebra crossing) near their barracks, a white Chevrolet sped up and hit the applicant and sped away. The applicant’s colleagues tried to chase the car (on foot) but were unable to catch it. The applicant was immediately taken to a hospital where he was a diagnosed as having a concussion, broken nose and his teeth were broken. …
…
The applicant stated that he was able to obtain a passport through a relative. The applicant never applied for a passport in the usual way because he did not want to make the Pasdaran suspicious. The applicant paid 900,000 Toman for an Australian visa, 500,000 Toman for exiting the airport and 1.2 million Toman for the passport itself. The applicant was able to obtain his passport in less than a month.
…
Since his arrival is Australia, the applicant has … met with other Iranians in the course of his employment, and through discussions with these Iranians the applicant has become aware of the bad activities of the Pasdaran and has ceased to have contact with the Islamic organisation with whom he had initial contact upon his arrival in Australia.The applicant stated that initially, he was in fear of his life from the Mojahedeen, but this fear has ‘almost vanished’. The applicant’s main fear is from the Pasdaran, because he has deserted from the Pasdaran, and he would be killed by them if he returns to Iran. The applicant fears that the Pasdaran suspect him of helping the Mojahedeen and being against the revolution.”
In relation to the Mojahedeen-e-Khalq (aka MKO and PMOI) the RRT said inter alia:-
“By and large, the MKO is not currently very active in Iran. Their current leader in exile in Paris is Maryam Rajavi, wife of Masood Rajavi. The MKO operate out of both Iraq and France. The MKO has declined in importance in recent years, retaining a limited but not much used capacity. The MKO continues to draw the bulk of its support from the Iranian exile community (… DFAT Iran Country Profile, March 1996).” [See 2.6.8.9 of the Country Profile]
In relation to overseas travel by members of the armed forces the RRT stated:-
“Under military regulations there is a ban on overseas travel for conscripts and regulars of the armed services, who are not permitted to hold current passports. However regular serving members can apply for special exemption on a case-by-case basis to take a private overseas trip. Each application is reviewed internally with probable input from military intelligence and other security organs. After permission is granted, the individual then applies for a passport. The whole process takes at least three months. The passport is issued with a red stamp exit stamp which indicates permission for one exit. There appears to be a limit of one private overseas trip per year allowed for applicants. The passport is handed in on return.
If a member of the Pasdaran (Islamic Revolutionary Guard Corps) with a current passport attempted to leave Iran through a legal exit point without such permission, he/she would be quickly detected both through the lack of an exit stamp and the computer check done on all Iranians travelling overseas. There is no real distinction drawn between a senior member of the Pasdaran and minor officials. However, the applications of those holding sensitive and key posts, or with access to sensitive security information would be subjected to closer scrutiny. Senior ranking military personnel often travel overseas in an official capacity (…DFAT Iran Country Profile March 1996).” [See 1.7.5 of the Country Profile]
Under the heading “FINDINGS AND REASONS” the RRT dealt with the matter exclusively under the subheading “Credibility”. It stated, inter alia:-
“It is reasonable that applicants whose claims are plausible and credible should, unless there are good reasons not to do so, be given the benefit of the doubt … . However, it is appropriate that I assess the specific claims advanced in support of an Applicant’s case, bearing in mind that
A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out …
It is clear that the Tribunal is not required to accept uncritically all claims made by applicants. …
…
Generally speaking it is inappropriate to speak of onus in administrative law decisions. However, ‘it must remain the position that the applicant for refugee status carries the overall onus of establishing to the satisfaction of the decision-maker that the relevant chance or possibility exists’. …The Tribunal is not satisfied, overall with the applicant’s credibility. Although the Tribunal is satisfied that the applicant was a member of the Pasdaran – in spite of the contradictory information between the information provided in the application form and the applicant’s oral claims, the Tribunal is not satisfied with other aspects of the applicant’s claims.
The applicant failed to mention both in his written application and at interview with the Department, and his written application to the Tribunal, a crucial incident he raised at his Tribunal hearing regarding his being hit by a car that the applicant claims was driven by the Mojahedeen. The applicant stated that it was this incident that made him fear for his life because the Pasdaran ‘could not always protect’ him and that sooner or later he would be killed. The applicant was unable to give a satisfactory explanation as to why he had not raised this crucial evidence previously, stating only that he had been nervous at his Departmental interview, and that he had not been asked about the incident. The applicant (sic) finds this explanation to be lacking in credibility and is not satisfied that the incident claimed by the applicant, and raised so late in the processing of his refugee application, actually occurred.
[Challenged in Ground of Appeal 2]The Tribunal also finds the applicant’s claims of fleeing Iran because he feared for his life from the Mojahedeen (MKO) to be implausible. [Challenged in Ground of Appeal 5] The independent evidence above … indicates that the Iranian authorities have made every effort to crush the Mojahedeen and to this end, have arrested and executed large numbers of known and suspected supporters and members. Whilst the government still regards the MKO as a major threat to security and stability, by and large, the MKO is not currently very active in Iran.
Given the lack of activity in the MKO in Iran, coupled with the very effective operation of the Iranian security apparatus in crushing the MKO, it appears implausible that a member of MKO would make contact on two occasions by telephone with a member of the Pasdaran, as claimed by the applicant, would then suggest a public meeting with a member of the Pasdaran as claimed by the applicant, and then proceed, in broad daylight to pursue members of the Pasdaran, and in particular the applicant, while he and his colleagues were walking back to the headquarters of the Pasdaran headquarters (sic). The tribunal finds these claims to be implausible and therefore not credible. [Challenged in Ground of Appeal 1]
The Tribunal also notes that the applicant does not seriously rely on these aspects of his claims, having stated that his fear of the Mojahdeeen has ‘almost vanished’. Nevertheless, the fact that the applicant has sought to make these claims, is (sic) spite of having retreated from them, remains a significant problem for his overall credibility. [Challenged in Ground of Appeal 3]
The applicant claims that his greatest fear in returning to Iran now, is from the Pasdaran, whom he claims will suspect him of supporting the Mojahedeen because he fled Iran without their permission. With regard to this claim, the Tribunal notes that the applicant joined the Pasadarn (sic) on the recommendation of the Basij Mahal directly from school. The applicant was, by his own account, an ardent supporter of the Islamic Revolution. The applicant stated that he worked as a member of the Pasdaran right up until his departure from Iran. The applicant has not been involved in political activities in Australia since his arrival. The applicant’s behaviour in the past, therefore, has given no indication whatsoever of an inclination to support the Mojahedeen. On the contrary, it appear that the applicant worked diligently for the Pasdaran for four years. According to the applicant’s claims he was well treated by the Pasdaran and valued by them. The Tribunal finds it implausible therefore, that the Pasdaran would suspect a valued member of their ranks of having suddenly developing (sic) MKO sympathies, simply because of a failure to return to Iran after having been abroad. The Tribunal therefore finds this claim to be implausible.
Furthermore, although the applicant claims to have been enlightened about the activities of the Pasdaran since arriving in Australia, the applicant has not been involved in political activities of any kind, indicating that in spite of his ‘enlightenment’ the applicant has chosen not to participate in any anti-Iranian government activities and does not have a deep commitment to doing so in the foreseeable future.
…the Tribunal accepts the applicant was able to use bribery to obtain his passport and exit Iran illegally. Iranian law imposes a fine or prison sentence of up to 12 months for illegal departure. However, the most likely penalty for an Iranian who has left Iran illegally is a fine. A prison sentence seems to be rarely used except when the person refuses to pay the fine, or in cases where the person’s illegal exit was prompted by a wish to evade justice (…DFAT Iran Country Profile, March 1996). [Challenged in Ground of Appeal 7] The Tribunal is satisfied that the treatment the applicant would undergo upon return to Iran – as a result of his illegal departure – does not amount to persecution within the meaning of the Convention, because, without more, punishment for illegal departure is an ordinary enforcement of a state’s migration law and does not of itself make a person a refugee …. There is nothing in the applicant’s evidence to suggest that in this case any punishment would be for reasons of actual or imputed political opinion rather than ordinary enforcement of a migration law. [Challenged in Ground of Appeal 6]
The applicant cliamed (sic) to have contacted his father (in Iran) since his arrival in Australia, and the applicant’s father has … faxed to the applicant … [a document] …
…
…The fact that the applicant’s father was able to send the applicant this document indicates that the applicant’s father was not held by the Iranian authorities for any period of time, and is clearly not of interest to the Iranian authorities. [Challenged in Ground of Appeal 4] The Tribunal is satisfied therefore that the applicant’s fear arising from his father being questioned is not well founded for the pusposes (sic) of the Convention.Given the serious reservations the Tribunal has in relation to the applicant’s credibility, and the implausibility of the applicant’s claims, the Tribunal cannot be satisfied that the Applicant has a real chance of being persecuted for a convention reason in Iran in the foreseeable future, and is therefore not satisfied that the applicant’s fear of persecution for a Convention reason is well founded.” [Emphasis has been added. In addition the findings under challenge in the Amended Notice of Appeal have been highlighted by underlining.]
The Tribunal proceeded to affirm the decision of the Minister’s Delegate not to grant a protection visa to the Appellant.
The DFAT Country Profile for the Islamic Republic of Iran, March 1996, after dealing with overseas travel by members of the armed forces in paragraph 1.7.5, to which the Tribunal referred in its reasons as indicated above, continued in paragraph 1.7.6 to deal with Penalties for Illegal Departure, to parts of which the Tribunal also referred, as follows:-
“1.7.6 Penalties for Illegal Departure
1.7.6.1While the law states a fine or prison sentence of up to 12 months for illegal departure, the most likely penalty for an Iranian who has left Iran illegally is a fine. A prison sentence seems to be rarely used except when the person refuses to pay the fine, or in cases where the person’s illegal exit was prompted by a wish to evade justice. In the latter case, the individual may also have to face the penalties, if convicted, for the original offence.
1.7.6.2The act of applying for asylum abroad is not, in itself, an offence in Iran. However, if an asylum seeker departed Iran illegally and/or was a fugitive from justice, it is not uncommon for close family members to be questioned by the authorities and in some cases for harassment to occur. At worst, knowledge that an individual has sought political asylum abroad would not result in much more than verbal harassment, unless the asylum-seeker concerned had a high opposition political profile.”
In the context in which section 1.7.6 appears in the DFAT document it is impossible to construe it as having a limited application which did not address penalties that would most likely be imposed on members of the Pasdaran who may have departed Iran without the Pasdaran’s permission.
Subsequent to 28 November 1997 the Appellant has taken numerous steps to overcome or circumvent the decision of the RRT. Expressed in chronological order these steps have been:
(a)On 23 December 1997 the Appellant instituted an application to review the decision of the RRT in this Court. The grounds of that application were expressed to be:
“1.Procedures that were required by the Migration Act to be observed in connection with the making if (sic) the decision was not observed.
2.That the decision involved an error of low (sic), involving an incorrect interpretation of the applicable low (sic) or an incorrect application of the low (sic) to the fact as found by the person who made the decision for the applicable (sic).
3.There was no evidence or other material to justify the making of the decision.”
This application for review was heard by Justice Emmett on 22 June 1998. His Honour ordered that the application be dismissed with costs. At the conclusion of His Honour’s reasons for judgment he said:-
“I do not understand that the ground that there was no evidence to justify the making of the decision has been seriously pressed.”
(b)By a letter dated 26 June 1998 the Appellant requested the Minister to substitute a decision more favourable to the Appellant for the decision of the RRT in accordance with s417 of the Act.
By letter dated 3 November 1998 the Department of Immigration and Multicultural Affairs advised the Appellant that the Minister had decided not to consider exercising his power under s417 in the Appellant’s case.
(c)By letter dated 24 November 1998 the Appellant sought a determination by the Minister that the restriction imposed upon an application being made for a fresh Protection Visa under s48A of the Migration Act 1958 (Cth) (“the Act”)should not apply to the Appellant.
By letter dated 8 February 1999 the Department of Immigration & Multicultural Affairs informed the Appellant that his application did not meet the Minister’s guidelines for purported further applications for a Protection Visa and accordingly would not be referred to the Minister for consideration.
(d)By letter dated 1 February 2000 the Appellant made a further application to the Minister for a more favourable decision to be made in the Appellant’s favour than the decision of the RRT in accordance with s417 of the Act.
(e) At this stage the Appellant became joined as a party to the Muin and Lie class action.
(f)The Appellant filed an affidavit in the High Court of Australia on 18 June 2003 annexing a draft order nisi seeking the issue of constitutional writs in respect of the decision of the RRT. The grounds relied upon were as follows:
“1.The decision of the First Respondent [the Tribunal] of 28 November 1997 was beyond its jurisdiction.
2.There was a denial of procedural fairness in the making of the decision in that the First Respondent took into account matters adverse to the Prosecutor without notice to the Prosecutor.
3.The First Respondent breached the rules of natural justice in connection with the making of the Decision.
4.The procedure that was required by law to be observed in order to make this decision was not observed.
5.The making of the decision was an improper exercise of the powers conferred by the enactment in pursuance of which it was purported to be made.
…”
This matter was remitted to this Court for consideration and on 30 April 2004 the application was dismissed by Justice Emmett.
In the foregoing context the Appellant instituted a further application for constitutional writs in respect of the decision of the RRT in the Federal Magistrates Court of Australia. A further amended application in those proceedings dated 3 June 2005 was heard by Federal Magistrate Smith on 16 June 2005 and decided by him on 14 July 2005. The orders made by the learned Federal Magistrate were:-
“1. Application dismissed
2. Applicant to pay the first respondent’s costs in the sum of $5,500”
The learned Federal Magistrate noted that the Minister wished to raise questions of estoppel but His Honour deferred considering same on the basis that he decided that the appeal should fail on the merits. In his reasons for judgment he said:
“3.The respondent now submits that the applicant is estopped from raising at least some of his contentions again in the present proceedings. Since the Federal Court’s jurisdiction in the proceedings determined by Emmett J was confined by the former s.476 of the Migration Act, the extent of any estoppel might raise difficult questions of characterisation of the applicant’s grounds for review now raised. Since, for reasons which follow, I have decided that they fail on their merits, I have not found it necessary to examine questions of estoppel.
4.For the same reason, it is not necessary for me to address the respondent’s further contention that relief should be refused on the ground of unacceptable delay and other conduct of the applicant prior to the commencement of the present proceedings. The applicant seeks to explain at least some of this, by his pursuit of Ministerial decisions under s.417 of the Migration Act, and by his subsequent involvement in the Ms Lie High Court ‘class action’. This was ultimately brought to an end by the refusal of his application for an order nisi by Emmett J on 30 April 2004.
5.Due to constraints of time, and with the agreement of the parties, I deferred receiving evidence and submissions on these matters. It has become unnecessary for me to recall the parties for that purpose.”
The learned Federal Magistrate was not persuaded that the Appellant had made out any grounds for the relief sought in his application. For present purposes it is unnecessary to spell out the learned Federal Magistrate’s process of reasoning.
By a Notice of Appeal filed 3 August 2005 the Appellant has appealed to this Court from the decision of the Federal Magistrate.
On the first day of hearing of this appeal the Appellant was granted leave to file in Court an amended Notice of Appeal.
Having regard to the grounds raised in the Amended Notice of Appeal, the ultimate issue for consideration is whether it was open to the RRT to conclude that it was not satisfied that the Appellant was a non-citizen in Australia to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol. Expressed more simply, in the circumstances of this case, the question is whether the Tribunal’s decision that the Appellant was not a person who, owing to well-founded fear of being persecuted for reasons of actual or imputed political opinion, being outside the country of his nationality, namely Iran, was unwilling to avail himself of the protection of Iran, was fundamentally flawed.
It may be seen from the manner in which the Tribunal expressed its findings as set out above that an overall conclusion was reached by the Tribunal that the Appellant was not a credible person. There followed a careful analysis of a number of matters which demonstrated a basis for the overall conclusion which the Tribunal reached.
As can be seen from the highlighted passages to which the several grounds of appeal relate, the grounds of appeal do not attack the Tribunal’s reasoning in a logical form. Sequentially, the Appellant’s challenges to the Tribunal’s findings are found in grounds 2, 5, 1, 3, 7, 6 and 4. No doubt the reason why the third matter under challenge was made the subject of ground of appeal number 1 was because it clearly allowed the Appellant to point out that the observation of the Tribunal “while he and his colleagues were walking back to the headquarters of the Pasdaran headquarters” was inconsistent with what the Appellant had told the Tribunal, which was to the effect that he was walking back to his garrison on his own when he was hit by the white Chevrolet. However, it must be remembered that even according to the Appellant’s claims a few of his friends had been posted by the Appellant’s commander to “keep an eye” on him and, if his claims were to be accepted, were, presumably in the vicinity at the time if not walking back to the headquarters with him.
In my opinion, the Appellant’s argument as recorded in ground 1 misses the point which the Tribunal was endeavouring to make. The validity of that point is unaffected by any imprecision in the relevant paragraph brought about by the inclusion of the words “and his colleagues” in the Tribunal’s reasons.
In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 at [37] – [38] Gummow and Hayne JJ said:-
“…s 65 of the Act provides that the Minister is to grant a visa sought by valid application ‘if satisfied’ of various matters. These include that any criteria for the visa prescribed by the Act are satisfied (s 65(1)(a)(ii)). Section 65 imposes upon the Minister an obligation to grant or refuse to grant a visa, rather than a power to be exercised as a discretion. The satisfaction of the Minister is a condition precedent to the discharge of the obligation to grant or refuse to grant the visa, and is a ‘jurisdictional fact’ or criterion upon which the exercise of that authority is conditioned. The delegate was in the same position as would have been the Minister (s 496) and the Tribunal exercised all the powers and discretions conferred on the decision-maker (s 415).
The satisfaction of the criterion that the applicant is a non‑citizen to whom Australia has the relevant protection obligations may include consideration of factual matters but the critical question is whether the determination was irrational, illogical and not based on findings or inferences of fact supported by logical grounds. If the decision did display these defects, it will be no answer that the determination was reached in good faith. To say that a decision-maker must have acted in good faith is to state a necessary but insufficient requirement for the attainment of satisfaction as a criterion of jurisdiction under s 65 of the Act. However, inadequacy of the material before the decision-maker concerning the attainment of that satisfaction is insufficient in itself to establish jurisdictional error.”
See also Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S20/2002 (2003) 198 ALR 59 at 66-7 [34] – [37] and 98 – 9 [173] – [174].
In S20/2002 McHugh and Gummow JJ later said, at p71-73:-
“[53] … the minister urged the rejection of the appellant’s claims to relief under s 75(v) of the Constitution and that this be done by treating distinctions between legal and factual errors as providing the decisive discrimen. The minister submitted that the ‘ultimate’ question for the tribunal was its satisfaction (or lack of it) respecting the appellant’s well-founded fear of persecution for a Convention reason, whereas at the ‘lower level’ there were questions of ‘primary fact’. Further, it was submitted that (i) want of logic in making findings of such primary facts does not constitute an ‘error of law’ and (ii) the presence of an ‘error of law’ is essential for a finding of jurisdictional error for s 75(v).
The introduction into this realm of discourse of a distinction between errors of fact and law, to supplant or exhaust the field of reference of jurisdictional error, is not to be supported. The ‘jurisdictional fact’ which supplies the hinge upon which a particular statutory regime turns may be so identified in the relevant law as to be purely factual in content. It was to prevent litigation directly on such questions of fact that legislatures stipulated the opinion of the decision-maker as to specified matters. That in turn led the courts to treat the formation of the statutory state of satisfaction as ‘reasonable’ and thus to posit some criterion for the assessment of the factual elements which went to supply that state of satisfaction. For example, the law in question in Melbourne Stevedoring conditioned the power of the Australian Stevedoring Industry Board to cancel or suspend the registration of an employer upon the board’s satisfaction that the employer was ‘unfit to continue’ to be so registered. The decision was that the facts disclosed no basis for supposing such unfitness and an order for prohibition was made. That conclusion was reached without recourse to distinctions between errors of law and those of fact.
In various areas of the law, there is a critical line drawn between factual and legal matters. The distinction between law and fact has informed the functions of judge and jury. It has been of central importance, both for the conduct of trials at nisi prius and the detection of reviewable jury error under the old appellate processes of the courts of common law. The matter is discussed by Jordan CJ in McPhee v S Bennett Ltd. Rights of appeal have been conferred by statute from the decisions of courts and tribunals but only in respect of what are identified in the statute as errors of law. The various pieces of New South Wales legislation considered in Azzopardi v Tasman UEB Industries Ltd and, more recently, in Maurici v Chief Commissioner of State Revenue provide two examples.
In Hayes v FCT, to which the minister referred, the right of ‘appeal’ to this court given from decisions of a Taxation Board of Review was confined to decisions which ‘involved[d]’ a question of law. Thereafter, s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) provided for an ‘appeal’ to the Federal Court ‘on a question of law’ from a decision of the tribunal. Such provisions have occasioned difficulty where the fact-finding process appears to have miscarried but, it is said, without engendering any error of law.
The minister’s reliance upon what was said by Mason CJ in Australian Broadcasting Tribunal v Bond was misplaced. Mason CJ there was construing those of the grounds of review of decisions, specified in s 5 of the ADJR Act, in particular that the decision ‘involved an error of law’, which might embrace complaints as to fact finding. The court was not considering notions of jurisdictional error elaborated in the decisions given under s 75(v) of the Constitution. Section 5 is constructed with a scope which spans more than the jurisdictional error. Thus, for example, it is a ground under s 5(1) that ‘the decision involved an error of law’ (para (f)), yet as Muin v Refugee Review Tribunal illustrates, there may be errors of law within jurisdiction and so beyond the constitutional writs. In any event, as the judgments in Minister for Immigration and Multicultural Affairs v Rajamanikkam illustrate, what was said in Bond respecting erroneous fact finding and review under s 5 of the ADJR Act may give rise to differences of opinion in this court.
The critical nature of the line drawn in the above areas of the law between factual and legal matters varies with the purposes it serves. The distinction between the functions of judges and juries is one thing, the limitation placed by legislatures upon statutory ‘appeals’ from specialist tribunals and decision-makers, and the scope of judicial review procedures created by statutes, are others. Section 75(v) of the Constitution, as mentioned above and as emphasised in recent decisions of this court, stands in a special position in the national legal structure.
In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam, we emphasised that the distinction between jurisdictional and non-jurisdictional error which informs s 75(v) manifests the separation between the judicial power and the legislative function of translating policy into statutory form and the executive function of administration of those laws. In this Australian constitutional setting, there is added significance to the point that the English common law courts ‘always disowned judicial review for error of fact’ and ‘jurisdictional fact review proceeds on the basis that it is a jurisdictional error of law for someone to exercise public power in the absence of a jurisdictional fact’.
These considerations militate against acceptance of the minister’s submissions. On the other hand, they also caution against the introduction into the constitutional jurisprudence attending s 75(v) of broader views of the scope for consideration of factual error in ‘appeals’ on questions of law which are created by statute, or in legislatively created systems of judicial review. There, what is engaged are principles of statutory, not constitutional, construction.”
Turning now to the Tribunal’s reasoning in this case I consider that the Appellant’s grounds of appeal should be addressed sequentially. This brings me to consider ground of appeal 2.
GROUND OF APPEAL NO. 2
The Appellant submits that during the hearing with the Delegate when the Applicant was describing the events leading to the car incident the Delegate imprudently diverted the Applicant from that issue and thus denied the Applicant the opportunity to describe the car incident.
The suggestion that the Delegate imprudently diverted the Appellant from the car incident issue is totally without foundation.
The reasoning of the learned Federal Magistrate in respect of ground 2 indicates no error on His Honour’s behalf.
The failure of the Appellant to tell the Minister’s Delegate that a white Chevrolet, suspected by him to have been driven by a member of the Mujahedin towards him, had sped up and hit him causing him to be thrown to the ground, injuring his head and his nose and causing most of his teeth to be broken beggars belief in circumstances where his application for a Protection Visa nominated his fear of harm from the Mujahedin as the principal reason for his application.
GROUND OF APPEAL NO. 5
The material before the Tribunal provided an adequate foundation for finding that the Appellant’s claims of fleeing Iran because he feared for his life from the Mujahedin to be implausible. It cannot be said that its conclusion in this regard was irrational or illogical and not based on findings or inferences of facts supported by logical grounds.
GROUND OF APPEAL NO. 1
I have already commented on this ground. The point of the Tribunal’s reasoning was to highlight the implausibility of the Mujahedin setting up a meeting with the Appellant as a member of the Pasdaran in broad daylight and to attack him in broad daylight in the manner suggested by him in the evidence given by him to the Tribunal on 21 October 1997.
GROUND OF APPEAL NO. 3
The finding under challenge was but one of a number of observations of the Tribunal on the Appellant’s credibility. It was not determinative of its overall conclusion that it was not satisfied with the Applicant’s credibility.
The Appellant has submitted that it should not have been considered at all in the assessment of the Appellant’s credibility. The submission misunderstands the Tribunal’s reasoning. What it considered affected the Appellant’s credibility was the fact that the Appellant persisted in making claims that the Pasdarans were at risk of being tortured or killed by the Mujahedin even although he had retreated from his reliance upon a fear of the Mujahedin.
GROUND OF APPEAL NO. 7
This ground is advanced on the basis that paragraph 1.7.6 of the Iran Country Profile referred to above applies only to civilians and has no application to illegal departures from Iran by members of the armed forces including members of the Pasdaran. In my opinion this submission involves a misreading of the terms in which the Iran Country Profile has been expressed. As indicated above paragraph 1.7.6 is not expressed to be limited to one class of Iranian citizens.
GROUND OF APPEAL NO. 6
The Appellant’s case in respect of the challenged finding hinges on the earlier submission that paragraph 1.7.6 of the Country Profile for Iran has no application to persons in the position of the Appellant.
It was open to the Tribunal to find that there was nothing in the Appellant’s evidence to suggest that any punishment meted out to him upon his return to Iran would be for reasons of the actual or imputed political opinions held by him. Rather, any punishment would be for his infringement of the relevant migration law.
GROUND OF APPEAL NO. 4
The challenged finding was consistent with paragraph 1.7.6.2 of the Country Profile for Iran referred to above. The Appellant submits that the father’s ability to send a facsimile to his son did not permit a conclusion to be drawn that he had not been held by the Iranian authorities for any period of time. Once again the finding made by the Tribunal was not irrational nor illogical nor could it be said to have been based on findings or inferences of fact that were not supported by logical grounds.
The finding made by the Tribunal was open to it and, in any event, was not determinative of the overall conclusion reached by the Tribunal as to the Appellant’s credibility.
It seems to me that none of the attacks raised by the Appellant to the findings of the Tribunal have demonstrated that the Tribunal fell into jurisdictional error in the context of an application for the issue of constitutional writs under s39B of the Judiciary Act 1903 (Cth).
Whilst it is unnecessary for me to consider the question of estoppel, it may be useful if I draw attention to what I said in my reasons for judgment in NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975 and, in particular, what I said at [37] – [38] namely:-
“As indicated in Wong … “Anshun” estoppel occurs when an applicant puts forward in a later proceeding matters which might have been put in the earlier proceeding. In Henderson v Henderson (1843) 3 Hare, at p 115 (67 ER at p 319) Sir James Wigram VC expressed the principle in these terms:-
‘where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in context, but which was not brought forward, only because they have, from negligence, inadvertence or even accident, omitted part of their case.’
What may come within the “special circumstances” exception to a finding of “Anshun” estoppel was dealt with by the Full Court in Wong. Those circumstances need to be “exceptional”: (see also BC v Minister for Immigration and Multicultural Affairs (“BC”) [2002] FCAFC 221 at [31] – [33] and [38] and Thayananthan at p 237 [52] – [53].)”
Were questions of Anshun estoppel to arise I would have considerable difficulty in accepting that there were special or exceptional circumstances which would permit the Appellant to bring forward matters in the current proceedings which might have been advanced in his earlier litigation but which were not so advanced either deliberately, through negligence, inadvertence or even accident.
In my opinion the appeal should be dismissed with costs.
I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.
Associate:
Dated: 26 October 2005
Solicitor for the Applicant:
Silva Solicitors
Counsel for the Respondent:
G R Kennett
Solicitor for the Respondent:
Australian Government Solicitor
Date of Hearing:
4 and 6 October 2005
Date of Judgment:
26 October 2005
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