SZMWI v Minister for Immigration

[2009] FMCA 770

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZMWI v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 770

MIGRATION – Review of RRT decision – applicant a citizen of Iran – whether claim based on Kurdish ethnicity clearly arose on materials before Tribunal – whether Tribunal was entitled to dismiss corroborative evidence on the basis of credibility findings not amounting to a comprehensive rejection of applicant’s story – whether Tribunal ought to have informed applicant of its suspicions regarding the authenticity of that documentary evidence – whether Tribunal failed to exercise its duty to enquire.

Migration Act 1958 (Cth), ss.422B, 424, 425, 427

NABE v Minister for Immigration (No.2) [2004] FCAFC 263
WAGU v Minister for Immigration [2003] FCA 912S
ZHKA v Minister for Immigration [2008] FCAFC 138
Minister for Immigration v SGLB [2004] HCA 32
Minister for Immigration v Le [2007] FCA 1318
Applicant M164/2002 v Minister for Immigration [2006] FCAFC 16
SZDGC v Minister for Immigration [2008] FCA 1638

Applicant: SZMWI

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 2720 of 2008

Judgment of: Raphael FM

Hearing date: 30 July 2009

Date of Last Submission: 30 July 2009

Delivered at: Sydney

Delivered on: 14 August 2009

REPRESENTATION

Counsel for the Applicant: Mr P Reynolds

Solicitors for the Applicant: Fragomen

Counsel for the Respondents: Mr T Reilly

Solicitors for the Respondents: DLA Phillips Fox

ORDERS

1. A writ of certiorari issue directed to the Refugee Review Tribunal removing into this Court to be quashed the decision of the Tribunal made on 10 September 2008.

2. A writ of mandamus be directed to the Second Respondent directing it to reconsider and determine the matter according to law.

3. First Respondent to pay the Applicant’s costs assessed in the sum of $5,500.00 from which should be deducted the sum of $2,750.00 awarded to the Respondent at the last hearing.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2720 of 2008

SZMWI

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of Iran.  He arrived in Australia on 19 November 2006 and applied to the Department of Immigration & Citizenship for a protection (Class XA) visa on 15 November 2007.  On 5 March 2008 a delegate of the Minister refused to grant a protection visa and on 17 March 2008 the applicant applied to the Refugee Review Tribunal for a review of the delegate’s decision.  The applicant, who was at all times represented by a migration agent, attended a hearing before the Tribunal and through his agent provided further representations thereafter.  On 10 September 2008 the Tribunal determined to affirm the decision not to grant a protection visa and handed that decision down on 23 September.

2. The applicant is of Kurdish ethnicity.  He was employed as an accountant in Iran prior to coming to Australia.  In a statement attached to his protection visa application he outlined his reasons for seeking the protection of Australia.  He referred to his very strict parents and then told of a relationship with a young woman that commenced when he was studying in Tehran for a Bachelor of Accounting Degree in 2003.  In about November 2003 her family found out about the relationship and threatened the applicant with a knife and made it clear that they intended to make arrangements for his girlfriend’s marriage to a cousin.  There was some more trouble with the girlfriend’s family and the applicant indicated that his own family would not be supportive of his position in wishing to marry the young woman.  The applicant and the young woman continued to see each other at the university and even considered running away together to get married:

   “But we knew this was impossible since we had nowhere to run and couldn’t leave the country and anywhere we would go through police and pasdar they find us and if we were captured then the government would kill us.  Please note my father used to be a police officer as such it would be really easy for him to find me.  Our studies finished and she moved to Sanandaj.  She was forced to marry her cousin a couple of months later.”  [CB 225]

3. In 2006 the applicant was offered a job in Sanandaj and ran into the young woman.  They began to meet and became lovers.  The woman told the applicant that her husband was addicted to drugs and that he was treating her badly.  The applicant applied for a visa to visit Australia for a year.  He claimed that he intended to return to the woman.  Shortly before he left he gave her a mobile telephone as a momento.  He says that she persuaded him to allow them to film their last act of lovemaking before he left:

   “I told her that at that stage that her husband might find out about it, but she said he is not good with these things and can’t even operate it.  She said he doesn’t even know how to use mobiles properly.  She said not to worry about him.” [CB 226]

4. The applicant left for Australia a couple of days later and sometime after his arrival he received a telephone call from the young woman who told him that they had been found out by her family and husband who wanted to kill him:

   “Next day her family and husband went to my parents’ house to look for me.  They had a huge fight with my family and police were called in.  They told the information to police.  They accused that my family is hiding her and I somewhere.  My dad said my son is not even in Iran at the moment.  That evening they called me as well.  They were very upset and told me off.  They said they are ashamed of me and told me if I come back the cops will arrest me and kill me. And that my name has been placed on the list.  I told her don’t stay in Sanandaj and leave immediately because they may try to find you. …

   All the families are aware of what’s happened now.  If she or I are found they will kill both of us because of the shame.  If the police catch either one of us we will be executed or killed.  If her family or husband find me they would kill me with a knife.  I am sure if I return I am listed in the airport watch list and would be captured immediately and would be killed. …” [CB 226]

5. The applicant attended a hearing before the delegate with his advisor.  The advisor informed the delegate that the applicant had been notified by his family that there was a summons issued against him and two translated documents were provided.  One document was a notice to attend the Sanandaj public court branch 5 at 10.00 a.m. on 11 August 2007 in relation to an accusation by Mr MKN regarding a sexual relationship with Mrs MV. The second document was headed “Summons” and was directed towards the disciplinary forces of Sanandaj to arrest the applicant on a charge of sexual relationship with a married woman.  That document was dated 10 September 2007 [CB 109 – 110].

6. At the hearing before the Tribunal the applicant was asked when had he first heard about the phone incident and discovery of the video. He said that he thought it was between 10 and 15 August and it might have been 10, 11 or 12^th when his girlfriend phoned him from his friend’s house.  He was asked when the summons was issued and stated that was about two or three weeks after receiving the phone call from the girlfriend:

   “[29]  The Tribunal noted that there were two documents, one a summons and one an order to arrest the applicant.  The Tribunal asked the applicant when his father received the arrest warrant.  The applicant believed he received it about one and a half months after the summons.  He stated the summons was received by his father one or two days after the complaint was lodged.  He believed the complaint was lodged on either 10 or 11 August 2007 after the girl’s family had gone to the applicant’s father’s home and involved the police.  His girlfriend informed him about the incident a couple of hours after her phone was taken from her.” [CB 228]

7. The Tribunal took up with the applicant a number of matters of concern to it:

   “[52]I asked how police found out he was in Australia.  He said his father told them.  He stated that it could be verified by documents at the airport or the travel agent where he obtained his visa. [CB 232]

   …

   [57]I indicated to the applicant that the Tribunal had concerns about the lack of family contact soon after the event occurred.  The Tribunal was also concerned about the summons requesting him to attend on 11 August 2007 when it was his evidence that the incident had occurred on either 10, 11 or 12 August 2007.  I also mentioned to the applicant that given his evidence that he was seriously fearful of the girl’s family it seemed strange that he would enter into a relationship again.  I also mentioned to the applicant that his evidence that his brother was detained until the next day had not been mentioned in his original statement.”  [CB 233]

8. On 6 August the applicant’s advisor responded to the Tribunal in a letter which is substantially reproduced in the decision record at [CB 233] but is completely reproduced at [CB 200 – 203].

9. The Tribunal spoke to the applicant’s advisor and asked if his client would consent to the Tribunal making enquiries with the authorities in Iran about the warrant and summons that the applicant had provided.  The advisor expressed concern on behalf of the applicant that the enquiries might lead to the Iranian authorities becoming aware that the applicant had applied for asylum in Australia and might harm his family in Iran for providing documents to assist him to remain here:

   “[61]The Tribunal made some enquiries regarding the documents in question.  The applicant’s identity was not revealed.  A lawyer in Iran informed the Department of Foreign Affairs & Trade (DFAT) that the post had blacked out the applicant’s personal details and showed copies of the warrant and summons to a local lawyer.  The lawyer confirmed that the documents were in the correct form, and looked authentic.  He said he doubted the documents were forged.”  [CB 234]

10. The Tribunal’s Findings and Reasons were short.  Because of the depth of the submissions that the Tribunal fell into jurisdictional error when coming to its conclusions it is best that they be rehearsed in full:

    “[67]In dealing with this application the Tribunal has formed a firm view the applicant lacks credibility and that his material claims cannot be accepted.  The Tribunal accepts that the applicant had a relationship with the lady in question.  The Tribunal accepts that he and his girlfriend may have recorded some of their romantic activities.  However, the Tribunal does not accept that the relationship was discovered by the husband’s sister as claimed or that the authorities summonsed the applicant or issued a warrant for his arrest in relation to this matter.

    [68]The following matters lead the Tribunal to conclude that the applicant is not truthful or credible in relation to his material claims.

    ·    The Tribunal accepts that the Iranian authorities deal harshly with persons who commit adultery.   It was the applicant’s evidence that he and his girlfriend recorded intimate moments on a mobile phone, which was retained by the girlfriend.  It was the applicant’s claim that in August 2007 some nine months after he left Iran the recording still remained on that phone and was discovered by his girlfriend’s sister in law at a family gathering.  The Tribunal finds it implausible that had such a recording been made, the lady in question would have retained it on a mobile phone which could have easily been accessed by her husband.  The Tribunal is not satisfied the recording was discovered as claimed.

    ·    During his evidence before the Tribunal the applicant stated that the incident relating to the discovery of the recording took place on 10, 11 or 12 August 2007.  He claimed that his girlfriend phoned him on the same day from her friend’s house.  The applicant provided documents to the Department purporting to be English translations of two summonses, one of which was undated and requested the applicant to attend Sanandaj Public Court on 11 August 2007 (Folio 111 and 112 Departmental File).  The Farsi versions of these documents were not provided to the Department.  They were provided to the Tribunal on 23 July 2008.  The Tribunal is not satisfied that had the incident occurred on 10 August 2007 the authorities would have issued and served a summons requesting the applicant to attend court on 11 August 2007.

    ·    Another concern in relation to these documents is that the applicant did not provide the documents to the Department until 19 February 2008 even though he claims they were issued in August and September 2007.  It was the applicant’s evidence that the documents relating to the summons and warrant had been in his brother’s possession since August or September 2007.  The Tribunal also finds it implausible that the authorities would issue a summons when they could easily determine that the applicant had in fact departed Iran.  He told the Tribunal that his father informed the authorities that he had left Iran.  The applicant’s evidence that the summons was issued on the same night as the incident because it was serious and the girl’s family was influential is not persuasive.  His evidence that the authorities were not aware of his departure is unconvincing.  When asked by the Tribunal why a summons would be issued by the police when they had been told by his father that he was out of the country he stated that the summons was issued by the court.  He then stated that he is not familiar with the procedure.  The Tribunal is not satisfied that the applicant’s details have been placed on an airport watch list.

    ·    The applicant claimed in his protection visa application that he and his siblings were obedient and complied with their parents wishes.  The applicant claimed that he asked his parents to approach the girl’s parents to request her hand in marriage.  The Tribunal finds it implausible that the applicant would send his parents to such a meeting know that the girl was already engaged to another.  The applicant’s evidence that he had no other option is unpersuasive.

    ·    It was the applicant’s evidence that he first heard from his family about the incident about two to three weeks after receiving the phone call from his girlfriend when his brother phoned from Tehran.  The Tribunal is of the view that his family would have informed him as soon as possible after they were told about the allegation and in particular given the seriousness of the situation.  The Tribunal is not satisfied that his family were confronted by the girl’s husband and family or that the applicant’s father and brother were required to go to the police station.

    Documents and photographs provided by the applicant

    [69]In making the above findings, the Tribunal has had regard to the above documents and photographs forwarded by the applicant to the Tribunal.  The Tribunal accepts that the girl in the photographs is known to the applicant.  However, in relation to the documents purporting to be a summons and a warrant, the Tribunal accepts that the documents may appear to be authentic but given the degree of credibility problems with the applicant’s evidence, the Tribunal cannot give any weight to the statements relating to the material claims as set out in those documents.  The applicant told the Tribunal that his father is an ex-police officer.  It is the Tribunal’s view that the applicant’s father could, if he so desired have access to such documents.  In light of the fundamental lack of credibility with the applicant’s evidence, the Tribunal is not satisfied that the statements relating to the applicant’s material claims in those documents are true.

    [70]Given that the Tribunal does not accept that the applicant is a witness of truth, it is not satisfied that the applicant has been threatened or attacked with a knife; that he has a well founded fear of persecution from his family or the girl’s family or that he has a real chance of suffering persecution in the reasonably foreseeable future because of his religion or his membership of a particular social group.

    [71]The applicant claims that the Iranian authorities will treat him even more harshly, because of his Kurdish ethnicity, if he is arrested for the offence of adultery.  The applicant has not provided any specific evidence that prior to the alleged incident in August 2007, he suffered persecution because he is a Kurd or that he is likely to be targeted for this reason in the reasonably foreseeable future if he returns to Iran.  The Tribunal is not satisfied that the authorities have an adverse interest in him because of his religion or his membership of a particular social group and is also not satisfied that he has a well founded fear of persecution because he is a Kurd.

    [72]Accordingly, the Tribunal is not satisfied that the applicant has a well founded fear of persecution for any Convention reason.”

11. The applicant who was represented by counsel before me moved on a Second Further Amended Application which contained ten grounds.  The applicant only proceeds on nine of these grounds and I shall deal with each in turn:

    1.The Applicant claimed (or alternatively the material before the Tribunal squarely raised the claim) that Kurds were persecuted in Iran.  The Tribunal did not consider the said claim (instead, considering a more limited claim that he would be treated more harshly as an adulterer because of his ethnicity), thereby committing jurisdictional error.

    It is accepted by the applicant that the claim of general persecution of Kurds was not specifically articulated by the applicant but he relies upon the dicta of the Full Court in NABE v Minister for Immigration (No 2) [2004] FCAFC 263 at [58-61] that whilst the Tribunal is not required to consider a case that is not expressly made it is required to consider one that arises clearly on the materials before it. The applicant pointed to the transcript at T6 where the following exchange took place:

    “T:Now, which of those five [convention] reasons do you say is relevant to your application?

    Int:We are saying that he think it is just race and being member of, you know, a special group because of what they have done.  It would be in those two categories.

    T:Why would you say race?

    Int:There is an ethnic Kurdish you know, because of Iran there are people from different ethnic backgrounds and Kurds are one of the ethnics.  And also the religion because what he is saying that what they have done it is against, you know, it is against the Islamic religion, the Islamic religion which is dominant and mainly in Iran, so what the group that he belongs and the sect or religion that he follows is just against according to definition of Islamic Republic of Iran and he said that would be persecuted and the result would be death for that.

    T:You are not saying that you are going to be persecuted for being a Muslim or for being Kurd.  You are saying you are going to be persecuted because you committed adultery with a married woman.?

    Int:He said that what I am saying that it has with race and religion is that this is something that interpretation of Islamic law adultery, the punishment for adultery is death.  It bears, you know, the death penalty.  So this is, he things that is because of the religion, he is thinking of, you know, fears of death and then being, you know, a Kurd, you know, the Kurdish people that there is a discrimination in general, you understand, not against the law but, you know, there are those who live in that area that is just, you know, background that you know and, of course, the government doesn’t say, accept that, but, you know, during the time, but this a bit of background that I have…”

    Given that the applicant was represented by a legally qualified migration agent I am of the view that the applicant has not satisfactorily articulated the independent claim in this exchange and I believe that these views are corroborated by the letter from the agent at [CB 200] in which he refers to the convention grounds under which his client falls.  The first is the particular social group of Iranian citizens who transgress Islamic laws relating to sexual conduct and the second is that he falls within the convention ground of being persecuted on the grounds of religion.  There is no reference in that letter to the independent ground of being a ethnic Kurd.  It is correct that there is a letter from the Australian Kurdish Association [CB 57].  This letter is relevantly in the following form:

    “We want to confirm that applicant is a Kurdish (Sorani speaker) from Iran.  As you might be aware of the situation in Iran; Kurds are being discriminated against for so many years and been treated unfairly.

    We would like to express our concern about his situation; should he return to Iran he will be in major risk and in a life threatening position which, we feel can be avoided if he was allowed to stay in Australia.  We believe he is a genuine refugee.”

    I cannot accept that this letter makes a clear case for a claim on the ground of Kurdish ethnicity.  It could easily be read as a letter which indicates that because he is a Kurd his problems with the Iranian authorities will be magnified.  That is the interpretation the Tribunal adopted and it is not an unreasonable one.  If the Tribunal made an error of fact in its interpretation of the letter I am of the view that this was an error within jurisdiction given the lack of clarity as to the exact claim. In a similar way the independent country information concerning the situation of Kurds in Iran could be utilised by the Tribunal (as it was) when it considered the magnification of the difficulties he would have rather than as a separate claim in themselves.

    2.      The Tribunal rejected the claim that Iranian authorities would treat the Applicant more harshly as a consequence of his ethnicity on the basis that the Applicant did not provide specific evidence in this regard.  This amounted to jurisdictional error in that:

    a)there was no evidence for this finding, given that there was some evidence of harsh treatment of Kurdish people by Iranian authorities

    b)The Tribunal failed to take into account relevant considerations.

    Particulars

    The evidence/relevant considerations consisted of:

    a)a letter from the Australian Kurdish Association which stated “As you might be aware of the situation in Iran; Kurds have been discriminated against for so many years and been treated unfairly; and

    b)a bundle of country information submitted by the Applicant that went to, inter alia, the circumstances of Kurds in Iran.

    The respondent’s answer to this ground is that the applicant has misread the Tribunal’s reasons at [CB 236 – 271].  The Tribunal came to the conclusions which it did because it believed the applicant had not provided it with any specific evidence about himself rather than general evidence about Kurds.  That is presumably how the Tribunal read the letter from the Kurdish association.  But even if the Tribunal fell into error in not properly considering the letter as offering corroboration of the effects upon the applicant if he should return having been charged with adultery that error only causes concern whilstsoever the Tribunal accepts that the applicant was so charged.  The Tribunal did not accept this.  The Tribunal did not believe that the young woman’s family ever discovered the adultery or reported it.  The Kurdish ethnicity claim is only a make weight for the principal claim of persecution arising out of his adulterous liaison.

    3.The Tribunal’s rejection of a warrant and summons submitted by the Applicant on the basis that the father was a former policeman is affected by jurisdictional error:

    a)the Tribunal breached section 425 of the Act in failing to draw this issue to the Applicant’s attention;

    b)further and in the alternative, there was no evidence to support this finding;

    c)further and in the alternative, the Tribunal committed jurisdictional error when it failed to exercise its powers under s.424 and/or 427(1)(d) to ask its Iranian lawyer whether former policemen in Iran could readily obtain documents such as the warrant and summons.

    The discussion between the Tribunal and the applicant is found at [T18 – 19].  At [T18] the Tribunal asked questions about the young woman and whether she was detained and prosecuted.  The applicant indicated that he didn’t know whether this has occurred because the young woman had left her husband and had gone into hiding:

    “T:And your brother hasn’t heard anything about her?

    Int:No.

    T:It would seem likely that if she had been detained, your brother would have heard something?

    Int:He says, no, because my brother hasn’t any contacts with them.

    T:But he could find out, I’m sure?

    Int:He said that, you know, Tehran is just a city of, you know, 15 million and, you know, but it’s not a small town that, you know, that they hear about this.

    T:And your father’s a policeman.  Is that correct?

    Int:Sorry?

    T:Your father is a policeman?

    Int:Police, yes.

    T:So he would be able to have access to information about this matter, would he not?

    Int:He was a police.

    T:When did he leave the police force?

    Int:Nine years ago.

    T:Okay.  So nobody has heard anything about this woman since she left your friend’s house.  Is that correct?”

    There is further reference to the position of the father as a policeman at [T48 – 49]:

    “T:Now, the summons which asks you to attend a specific place on 11 August and you say you think you heard about the incident about the – either 10, 11 or 12 August.  That seems a bit fast – that date, for you to attend in response to the summons?

    Int:Because it was the importance of the matter and it wasn’t – it wasn’t something ignoring because – pretty important issue and there was no doubt about the matter because there was evidence involved.  The judge issued those relevant documents the same night and I have mentioned it in my case that her family are pretty influential and because they were not aware – this is what I’ve heard from my family – because they were not aware of my departure, they’re going through some means and ways to find me.  They thought that I was hiding, so they could arrest me, or if I was escaping they could … or apprehend me for this issue.

    T:So it seems to me that, police in that situation, having been told by your father who himself was an ex-police officer and seems to be pretty respected, that you were not in the country, they would not issue a summons for you to attend on 11 August 2007, if you were clearly out of the country?

    Int:This summons is not by the police.  It’s by the court.  It’s different.

    T:Well, the police would have to put the information on, would they not, to get the summons?

    Int:I’m not familiar with the official way of handling all this – the procedure that they follow.”

1. There is no independent country information or other documentation which would throw light on the abilities of ex policeman in Iran.  At [CB 236] at [69] the Tribunal says:

   “In making the above findings the Tribunal has had regard to the above documents and photographs forwarded by the applicant to the Tribunal. …  However, in relation to the documents purporting to be a summons and a warrant, the Tribunal accepts that the documents may appear to be authentic but given the degree of credibility problems with the applicant’s evidence, the Tribunal cannot give any weight to the statements relating to the material claims as set out in those documents.  The applicant told the Tribunal that his father is an ex police officer.  It is the Tribunal’s view that the applicant’s father could, if he so desired, have access to such documents.” [emphasis added]

   This is a very serious finding. If all the Tribunal was saying was that the applicant’s father was a person who was able to get hold of documents, then it would follow that having done so and submitted the documents, the Tribunal may have been impressed by the evidence of its own witness that the documents are genuine.  There would be little point in making a note that these were documents that the applicant’s father could easily obtain.  That would take the matter no further.  I am satisfied that what the Tribunal was implying was that the documents were forged by or on behalf of the father.  That was the reason for not accepting them and dismissing the evidence of the Tribunal’s expert.  The applicant argues that the Tribunal’s conclusions cannot be put down as its “subjective thought processes” but are clearly the identification of an issue, although he accepts that to some extent all issues must be subjective thought processes and that issues dispositive of the review must be conditioned by thought processes.  I do not see much difference between what is effectively an assertion that the documents were forged and the proposition considered in WAGU v Minister for Immigration [2003] FCA 912:

   “That the applicant is well connected there to have such statements arranged.”

   Of this French J said:

   “This was a proposition, which as the learned Magistrate observed, was not supported by any evidence before the Tribunal.  It was a proposition that the Tribunal never put to the appellant and does not naturally flow from adverse findings as to his credibility.  It essentially involves a finding that the appellant has been involved in some kind of conspiracy that a person or persons in Iran to fabricate information about his connection with the freedom movement to dupe its secretary general so that he would send an email to Australia confirming the appellant’s involvement.  None of this was ever put to the appellant.  Moreover it provided a basis for rejection of the document which meant that it did not have to be taken into account in the assessment of credibility….

   [39]    In my opinion there was in the Tribunal’s treatment of the email a failure to accord procedural fairness to the appellant by at least putting to him the Tribunal’s suspicions about the way in which the email came into existence.”

   And in SZHKA v Minister for Immigration [2008] FCAFC 138 at [7] Gray J opined:

   “The second important aspect of s 425(1) is that the evidence and arguments are to relate to "the issues arising in relation to the decision under review." The focus on this element of the subsection was the basis for what the High Court of Australia decided in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[2006] HCA 63 (2006) 228 CLR 152. For present purposes, it is not necessary to quote the whole of what the High Court said in [33]-[40], but certain points emerge clearly from that passage. First, the issues arising are not limited to the question whether the applicant is entitled to a protection visa, but are more particular than that. Second, initially the issues will be defined by the reasons given by the person who made the decision under review, but the issues may, and often will, undergo change in the course of the Tribunal’s conduct of the review of that decision. Third, because the Tribunal starts from the position of being unpersuaded by the material already before it, the hearing will inevitably explore the reasons why the Tribunal might not be persuaded by that material; the Tribunal will not perform its function adequately if it does not provide the applicant with the opportunity to satisfy the Tribunal’s specific reservations about the applicant’s case. Thus, to some extent at least, the issues arising in relation to the decision under review will depend upon the view that the ultimate decision-maker takes about the material before the Tribunal, and will therefore be shaped by that person’s thought processes. This is not to say that the Tribunal member must expose all of his or her thought processes to scrutiny by the applicant, as part of the hearing. The High Court recognised this in SZBEL at [38]-[39]. The line between exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising may not be easy to recognise in all circumstances, but it does exist.”

2. The Tribunal had in its possession the documents.  It made enquiries about those documents detailed at [CB 214 – 215].  The response from the post was as follows:

   “The lawyer confirmed that the documents were in the correct form and looked authentic.  He said he doubted the documents were forged.”

   Notwithstanding this evidence the Tribunal proceeds to a conclusion which to my mind cannot be read otherwise than as an implication that the documents were forged by the applicant’s father.  Nothing of that nature was ever put to the applicant either at the hearing or in the form of a 424A letter written after the hearing.  The respondent argues that this is a “poisoned well” case but I am unable to see how the purported lack of credibility could extend to this corroborative material.  I say this firstly because the Tribunal does not disbelieve all of the applicant’s evidence, it accepts that he had a relationship with the woman in question, but more importantly, the Tribunal obtained its own evidence about the documents and that evidence was that they were genuine.  The Tribunal does not have to accept that evidence, it could come up with a number of reasons for not accepting it. One of them could have been that it believed that all Iranian lawyers supported the regime and could not comprehend the issue of a false document, another could have been that all Iranian lawyers believed that the adultery laws were overwhelmingly harsh and would do whatever they could to protect an individual from them.  But the Tribunal could not reject the lawyer’s evidence on the basis of an unfounded suspicion that Iranian ex police officers were able to obtain and forge such documents because forgery was the very query put to the lawyer.  If it did intend to do this then the very least it should have done was to make another enquiry of the lawyer as argued by the applicant or to have put that suspicion to the lawyer in the first place.  The applicant submits that the dicta of the High Court in Minister for Immigration v SGLB [2004] HCA 32 at [42 – 44] that there was no duty to enquire must be qualified by the addition of s.422B(3) which requires that in applying Division 4 of Part 7 the Tribunal must act in a manner that is “fair and just”.  The arguments concerning the duty to enquire were considered comprehensibly by Kenny J in Minister for Immigration v Le [2007] FCA 1318:

   [77]This is one of those rare or exceptional cases where a decision-maker acting reasonably would have made some further enquiry before making a decision. At the least, a decision-maker, acting reasonably in the Wednesbury Corporation sense, would have sought to verify whether the primary decision-maker’s statements regarding Mr Nguyen’s supposed admissions derived from what the primary decision-maker mistakenly understood to be the effect of Mr Nguyen’s written statement….

   [78]These enquiries were not difficult to make. The Tribunal ought to have known that they might readily be made. Presumably, they would have yielded at least some relevant information on issues that were plainly critical to the outcome of the Tribunal’s review. Of course, once the Tribunal received this information, it was bound to deal with it as the Act required and the ultimate decision on the merits of Ms Le’s application was a matter for it to decide in conformity with the Act and the Regulations.”

   In Applicant M164/2002 v Minister for Immigration [2006] FCAFC 16 Lee J with whom Tamberlin J agreed; Dowsett J dissenting, said at [76]:

   “If the material before the Tribunal and the circumstances are such that the need for further inquiry is obvious, and no impediment to the conduct of such an inquiry is apparent, the failure of the Tribunal to exercise the power and proceeding instead to make a decision adverse to an applicant may point to a conclusion that the Tribunal has denied the applicant the conduct of a fair proceeding. In particular that issue will arise where the Tribunal is prepared to draw adverse inferences from material before it on grounds that are slight and in the absence of the assistance to the hearing process that would be provided to the Tribunal by reasonable use of the powers provided under s 427(1)(d).”

   It could not be said in the present case there was any impediment to the conduct of a further enquiry to the lawyer.  If the lawyer had confirmed the Tribunal’s suspicions, or the possibility of them, then the Tribunal would have been within its rights to make the finding which it did, or perhaps more appropriately to make a finding that it was possible that the father had done what the Tribunal had determined he had done and therefore the applicant’s general failure of credibility could have been utilised to give the evidence no weight.  I am of the view that the Tribunal’s failure to enquire constituted a form of Wednesbury unreasonableness which in the circumstances constitutes a jurisdictional error.

   4.The Tribunal committed jurisdictional error by rejecting the Applicant’s corroborative documentation on the basis of its credibility, without having comprehensively rejected his credibility

   The applicant’s submissions in relation to this ground are as follows:

   “[33]It is well accepted that it is not irrational to discount corroborative evidence on the basis that the Applicant’s credibility had been rejected (the so called ‘poisoned well’ argument).  However, it is clear that credibility must be comprehensively rejected before this manner of reasoning is enlivened.  If there is no comprehensive rejection, a Tribunal cannot simply discount corroborative evidence because it considers the Applicant’s claim unlikely.

   [34]The Tribunal accepted that the Applicant: (i) had an affair with a married woman, (ii) made a video of their sexual activities; and (iii) Iran severely punished adulterers.  It also accepted that he knew the woman in the photographs that he gave the Tribunal and accepted that the Applicant’s father was formerly a police officer.  Accordingly, the Tribunal did not comprehensively reject the Applicant’s credibility; rather, it accepted the Applicant’s claims in a number of important respects.  Therefore it follows that the Tribunal committed jurisdictional error by rejecting the corroborative evidence on the basis of its credibility concerns alone.”

   In SZDGC v Minister for Immigration [2008] FCA 1638 Finkelstein J said at [23] after quoting from Applicant S20/2002:

   “[23]… That proposition is no doubt true.  But the circumstances for its application will be rare indeed. Even experienced applicants can only point to a handful of cases where a witness’ credit has been so badly destroyed in cross-examination that it is possible to make findings of fact based upon that evidence alone and simply disregard any corroborative evidence.

   [24]For example in WAIJ v Minister for Immigration [2004] ATA ALD 568 the appellant complained that the Tribunal failed to have regard to certain documents because the Tribunal was not convinced the documents could overcome the difficulties that it had with the appellant’s evidence.  Lee and Moore JJ said at [27]:

   Such a circumstance may arise where an applicant's claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material: see S20/2002 at [49] per McHugh and Gummow JJ. Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied … it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant's claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant's credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323…

   [27][I]t is false reasoning to find that the corroborative evidence is not authentic because the Tribunal without regard to that evidence found the appellant to be dishonest.  The Tribunal should have had regard to the documents when assessing the appellant’s credibility.  In that process it might have found the documents not to be authentic.  But that would need to have been for independent reasons unless the appellant’s evidence fell into the S20/2002 category.”

3. I believe these cases issue a timely warning about a too generous approach to the dicta in S20/2002.  I accept the applicant’s submissions because I do not agree with the respondent that the applicant’s story had been comprehensively rejected for reasons of dishonesty or untruthfulness.  Sufficient of his story was believed to require the Tribunal to have taken the corroborative material into account in coming to a conclusion about the applicant’s credibility.  For the reasons I have already given I am unable to see how the Tribunal could have come to the conclusions which it did about that corroborative evidence on the facts before it or without further enquiry.

   5.The Tribunal’s finding that it was implausible that the Summons would not have been issued a day before his demanded appearance is affected by jurisdictional error:

   a)there was no evidence to support the underlying finding that authorities do not issue summonses a day before the demanded appearance;

   b)further and in the alternative, the Tribunal committed jurisdictional error when it failed to exercise its powers under s.424 and/or 427(1)(d) to ask its Iranian lawyers whether authorities in Iran issue summonses a day before the demanded appearance.

4. I am of the view, for the reasons which I have already expressed, that it would have been open to the Tribunal to make further enquiries of the lawyer.  I see no reason why these enquiries could not have included the concerns the Tribunal had about the apparent speed with which the summonses were issued.  There is no evidence to support the Tribunal’s conclusions of implausibility, there is no indication that the Tribunal has special knowledge of the Iranian legal system or police activity.  If the Tribunal was acting on its understanding of the Australian system then it would have been wrong to assume that the police in Australia would not issue a summons against a defendant upon the day in which a complaint was made where the police were satisfied that the complainant had provided them with enough evidence to support the issue of the summons.  The finding was simply not open to the Tribunal.

   6.The Tribunal’s finding that a summons and a warrant would not have been issued had the authorities known that he had left Iran is affected by jurisdictional error:

   a)there was no evidence to support the underlying finding that authorities in Iran do not issue summons or issue arrest warrants when the relevant persons are overseas;

   b)further and in the alternative, the Tribunal committed jurisdictional error when it failed to exercise its powers under s.424 and/or 427(1)(d) to ask its Iranian lawyer whether authorities in Iran issue summons or issue arrest warrants when the relevant persons are overseas.

5. The concerns which I have raised about the findings complained of in this ground are similar to those of the finding complained of in ground 5 and for the reasons expressed therein I believe the Tribunal was in error in making those findings in the absence of evidence or enquiry.  The respondent argues that the Tribunal’s concerns had been raised with the applicant himself at the hearing but he had been unable to assist and that this negated any responsibility that the Tribunal had to put its concerns to the lawyer.  Certainly it was fair that the Tribunal did raise these matters with the applicant but that does not detract from the Tribunal’s responsibility to make its findings based on evidence.  Again, it is not the applicant’s truthfulness that was in issue, it was certain corroborative material.  The Tribunal had made enquiries about that corroborative material and received a response it did not agree with.  But it had no grounds for that disagreement other than its impression of the applicant’s credibility when he had not (and was not impliedly accused of having) forged the documents. 

   7.The Tribunal committed jurisdictional error by failing to ask itself the right question when, having accepted that (i) the Applicant had been engaged in a relationship with a married woman, and (ii) the Iranian authorities deal harshly with persons who commit adultery, it failed to ask itself:

   a)how the Applicant would behave if he returned to Iran (i.e. whether he would attempt to resume contact or not);

   b)if so, whether he would have a well founded fear of persecution;

   c)if not, whether there was any prospect of his past adultery being discovered anyway; and

   d)if not, whether the fact that he did not resume contact with the woman (i.e. behave in a discrete fashion) amounted to persecution in itself.

6. The respondent argues that the applicant made no claims about what he would do if he returned to Iran and whether or not he would take up with the young woman again.  The applicant on the other hand points to the statement made by the applicant that he was only going away for a year and would return.  The respondent argues that the applicant’s claims to be a refugee resulted from the discovery of his affair and not from the affair itself.  The Tribunal did not believe that the applicant’s affair had been discovered.  The applicant did not articulate to the Tribunal a claim that if he went back and continued his affair they would be discovered and then they would both be subject to the draconian Iranian law.  I am not satisfied that there was an unarticulated claim that rose squarely on the very limited set of facts accepted by the Tribunal so as to fall within the principles considered in NABE.

   8.The Tribunal committed jurisdictional error in that a number of its findings were irrational, unreasonable or arbitrary in the sense that the Tribunal was acting on instinct rather than reason.

   Particulars

   The Applicant relies in particular on the following findings in this regard:

   a)the Warrant and the Summons should be discounted because of the father’s former employment as a police officer;

   b)it was implausible that the summons would not have been issued a day before his demanded appearance; and

   c)a summons and warrant would not have been issued had the authorities known that he had left Iran.

1. This ground seems to be a general role up of previous grounds.  To the extent that some of the previous grounds have been accepted it is not necessary, and if they were not accepted then I do not believe that by rolling them up they become any stronger.  I do not think this ground requires further comment.

   9.The Tribunal committed jurisdictional error by failing to consider a claim and/or take into account a relevant consideration.

   Particulars

   a)The Tribunal rejected the claim that the woman kept a particular video on her mobile telephone on the basis that she would not do so given that they were easily accessible by her husband, without considering the Applicant’s claim that the woman told him that her husband did not know how to use a mobile telephone.

   b)The Tribunal rejected the claimed attack on the Applicant by the woman’s brother without considering the scarring on the Applicant’s wrist and the claim that it was caused by the woman’s brother striking the Applicant.

2. I accept the respondent’s submission that this is really a claim for impermissible merits review.

3. The applicant has decided not to proceed with the most interesting ground, being ground 10, and I shall not comment upon it.  In my view the Tribunal has rather comprehensively fallen into jurisdictional error in the manner in which it reached its conclusions in this case.  I would therefore grant the constitutional writs sought by the applicant and order that the respondent pay the applicant’s costs which I assess in the sum of $5,500.00 from which should be deducted the sum of $2,750.00 which I awarded to the respondent at the last hearing.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate: 

Date:  14 August 2009