W50/2001 v Minister for Immigration & Multicultural Affairs

[2001] FCA 1305

W50/2001 v Minister for Immigration & Multicultural Affairs [2001] FCA 1305

W50/2001 v Minister for Immigration & Multicultural Affairs [2001]

FCA 1305

Migration Act 1958 (Cth)

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 applied

Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 referred to

W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 referred to

W50/2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 50 OF 2001

HELY J

13 SEPTEMBER 2001

SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 50 OF 2001

BETWEEN:	W50/2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	13 SEPTEMBER 2001
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.       The application be dismissed with costs.

2.       The applicant be referred to only as W50/2001.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 50 OF 2001

BETWEEN:	W50/2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	13 SEPTEMBER 2001
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

1 This is an application under Part 8 of the Migration Act 1958 (Cth) ("the Act") seeking a review of a decision of the Refugee Review Tribunal ("RRT") given on 12 February 2001. By that decision RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant.

2       RRT construed the application for a protection visa as being based upon two grounds:

-       the applicant is a member of a particular social group (his family) which had been persecuted in the past due to their perceived opposition to the fundamentalist Islamic regime arising from his father's involvement with the Shah;

-       the applicant feared persecution because of an imputed political opinion due to his involvement in helping groups opposed to that regime.

3       RRT rejected each of these claims. Its rejection of the first ground is not challenged by the amended grounds of application for review. The grounds of review are confined to the second basis on which the claim to refugee status was sought to be established. It was the applicant's contention that his claim to refugee status was confined to the second ground; matters relating to his father merely formed part of the background.

4       Shortly stated, the applicant's claim was that his father acted as a go-between between the applicant and a small group of pro-Shah people, as a result of which the applicant agreed to do repair work on their vehicles for which he received substantial payment. In about August 2000 the Basiji , an intelligence group supporting Etelaat, passed the applicant's car repair shop, and noticed that a car which was in for repairs had bullet holes in its back panel. The applicant realised that his "affair was disclosed". He decided to escape from Iran, which he did with the assistance of a smuggler who procured a "false Iranian passport" for him.

5       Prior to his departure, the applicant went into hiding and was told that his parents and brother had been detained. He later learnt that his mother and brother had been released, but not his father. The applicant suspected that his father's friends, who brought cars to the workshop, were "possibly with the Mudjahadeen, although they had never told him this `directly'".

6       The applicant was informed by his mother, after he left Tehran, that his father was still detained, that their house had been searched and that the authorities had told his mother that the applicant was a "Mudjahadeen and a terrorist and anti-government".

7       RRT expressed its conclusions in this way:

"I consider that (the applicant's) claim that he assisted the MKO or any opposition group in the ways he claims is implausible, and I am not satisfied that he did so.

Therefore his other claims must fail as to the events that flowed from that assistance. I am not satisfied that members of the basiji became suspicious of him, that he went into hiding, that he left Iran using another person's passport in order to avoid security checks, that his home was searched or that his family members were then detained because of a political opinion imputed to him."

8       Counsel for the applicant, Mr Cameron, submits that in the first of the passages quoted RRT fails to come to grips with the gravamen of the applicant's claim that he fears persecution because of an imputed political belief arising from the perception by the authorities that he has some association with MKO. If the authorities had that perception it could not seriously be in contest that the applicant would have a well-founded fear of persecution. In Mr Cameron's submission, a finding by RRT that the applicant did not assist MKO or any opposition group in the way he claims fails to address the real question, which is whether the authorities suspected him of affording that assistance.

9       The findings referred to in the second of the passages quoted above are purely consequential, rather than the product of independent consideration as to the truth or otherwise of those claims. In Mr Cameron's submission, the finding that the applicant did not assist the MKO does not lead to the conclusion, for example, that he did not have a subjective fear of persecution which led him to go into hiding and to leave Iran on a false passport, because those matters may well have occurred if the applicant knew that the authorities suspected him of involvement with the MKO, even though that suspicion was without factual foundation.

10       Mr Cameron's argument had an initial attraction, but it is one which evaporated on re-reading RRT's decision. In substance, and on a fair reading of its decision, RRT found that the applicant was not engaged in repairing cars with bullet holes in them for the MKO or any other opposition group. The proposition that the authorities suspected that the applicant was so involved has its foundation in the claim that members of the Basiji discovered that the applicant was engaged in repairing cars with bullet holes in them. If that is not accepted, as it was not, then all else falls away. The applicant's case as to an imputed political opinion was grounded, and only grounded, upon the fact that he was engaged in the repair of bullet-ridden cars.

11       I turn then to consider the specific grounds on which review is sought.

Ground 1

-       By rejecting the applicant's claim that he had attracted the adverse attention of the Iranian security forces by working on vehicles used by a suspected terrorist organisation, on the basis that it was unable to find reports of a rapprochement between monarchist forces and the MKO, the Tribunal identified a wrong issue, asked itself wrong questions, and thereby exceeded its authority and powers of decision;

- The Tribunal's decision was made without jurisdiction, was not authorised by the Act - ss 476(1)(b) and 476(1)(c).

12       The issue which RRT was required to address was what is likely to happen to the applicant if he is returned to Iran. In addressing that issue RRT is required to consider what occurred in the past insofar as it might provide a guide to the likely future. The applicant told RRT that "he believed that the group he helped was the Mudjahadeen, although they never told him this `directly'". In the light of that claim, RRT committed no error in considering the likelihood that the applicant's father would act as a "go-between" between MKO and his son. Nor did it err in enquiring whether MKO vehicles in Iran at this time were likely to be exhibiting bullet hole damage.

Ground 2

- By failing to take into consideration the payment the applicant claimed to have received before rejecting his claim to have serviced vehicles used by a suspected terrorist organisation, the Tribunal failed to make a relevant finding of fact, and so to conduct the review required by s 414 of the Act, which was a precondition to it being satisfied whether or not the applicant was a person to whom Australia owed protection, with the result that it acted without jurisdiction and its decision was not authorised by the Migration Act 1958 (Cth) - ss 476(1)(b) and 476(1)(c).

13       One can infer from the failure to make a finding on the matter of payments to the applicant for the work which he undertook that RRT did not regard this matter as a material fact. The applicant's evidence (CB 21) was that "the money did not matter" as the applicant's assistance was ideologically based. The applicant did not regard the money as material. There is no reason why the Tribunal should take a different view. It was not material to the applicant's claim to have a well-founded fear of persecution by reason of his having assisted persons whom he suspected of being associated with MKO by working on their cars. The rejection of the claim that the applicant was engaged in the repair of bullet-ridden cars carries with it the rejection of any proposition that he was paid for doing so.

Ground 3

- By failing to make a finding on the travel documents used by the applicant to leave Iran the Tribunal failed to make a relevant finding of fact, and so to conduct the review required by s 414, which was a pre-condition to it being satisfied whether or not the applicant was a person to whom Australia owed protection, with the result that it acted without jurisdiction, its decision was not authorised by the Act and it applied the law to the facts in an incorrect manner - ss 476(1)(b), (c) and (e).

14       For the reasons earlier given, the applicant's case as to the authorities imputing to him a particular political opinion was grounded, and only grounded, upon the proposition that he was engaged in the repair of bullet-ridden motor vehicles. Once this foundation is removed, it was not necessary for the Tribunal to proceed further. As a matter of strict logic it may not necessarily follow that the applicant left Iran on his own passport, but the claim that he used a false passport is really built upon the foundation which RRT rejected.

Ground 4

- By failing to apply the real chance test to its findings of fact the Tribunal failed to conduct the review required by s 414, which was a pre-condition to it being satisfied whether or not the applicant was a person to whom Australia owed protection, with the result that it acted without jurisdiction, its decision was not authorised by the Act and it applied the law to the facts in an incorrect manner - ss 476(1)(b), (c) and (e).

15       If RRT is confident in its conclusions, it is not bound to consider whether its findings might be wrong. This issue was examined by a Full Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 . Sackville J at pars 64 and 65 said:

"In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.

Nor do I think that there is anything in the reasoning of the High Court which permits a court exercising powers of judicial review to `impute' to the RRT (or other administrative decision-maker) a lack of conviction or confidence in its findings of fact, such as to warrant a holding that the RRT should not or could not have relied on those findings to hold that the applicant's fear of persecution was not well-founded. To take this course on the basis of the court's own assessment of the evidence before the RRT, is to enter the territory of merits review. It is one thing to find error in a decision-maker's failure to apply the correct legal test or to comply with statutory obligations (for example, to set out findings on material questions of fact as required by Migration Act, s 430(1)(c)). It is another to decide what factual findings the RRT should or should not have made."

16       Accordingly, I am not satisfied that any of the grounds referred to in the Amended Grounds of Application for Review dated 6 August 2001 have been made out.

17       At the commencement of the hearing a problem arose because Mr Cameron had listened to the tapes of the hearing before RRT and wished to rely upon things which he had heard as part of the review process. No transcript of the tapes exists. Sensibly Mr Cameron and Mr Macliver agreed upon what had happened at the hearing in relevant respects. They also agreed to incorporate that agreement into a minute to be lodged with the papers, and that the applicant should be allowed to file Further Amended Grounds of Review in order to raise these matters. A timetable was also agreed for the lodgment of written submissions with respect to the proposed further matters. The balance of these reasons deals with this further aspect of the case.

Further Grounds of Review

18 Ground 1.1 of the Further Grounds of Review asserts that by failing to put to the applicant and his advisers for comment, either at the hearing or prior to making a decision, particulars of the absence of media reports of a rapprochement between monarchists and the MKO when RRT considered that such information would be the reason or part of the reason for affirming the decision under review, RRT failed to comply with the provisions of s 424A of the Act, and thereby did not observe the procedure which was required by the Act to be observed in connection with the making of the decision within the meaning of s 476(1)(a).

19       The relevant portion of RRT's reasons for decision in relation to further ground 1.1 is:

"It is also very difficult to believe that [the applicant's father] would put his own son at serious risk by encouraging him to assist such a group. [The applicant's] explanation that both the monarchists and the MKO shared a political opponent in the present regime is insufficient, in my view, to account for his father's willingness to assist the MKO. [The applicant's] solicitor argued that the evidence after 1996 is silent as to whether the MKO and the monarchists have begun to co-operate. That is so. However, as any development in this direction would be newsworthy, I infer from the silence that there has been no rapprochement. Even if there were co-operation at some level between monarchists and the MKO abroad, it remains implausible that [the applicant's] father might have done what is claimed, given that he had been politically inactive for many years."

20       It is common ground that RRT did not put to the applicant and his adviser for comment, either at the hearing or prior to making its decision, particulars of the absence from the Iranian media reports of a rapprochement between monarchists and the MKO.

21 Section 424A of the Act provides as follows:

"Applicant must be given certain information

(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c) invite the applicant to comment on it.

(2) The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention.

(3) This section does not apply to information:

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application; or

(c) that is non-disclosable information."

22 RRT accepted as correct a piece of information proffered by the applicant's solicitor, but drew a different inference from that information from that contended for by the solicitor. Section 424A is not concerned with the subjective thought processes of the Tribunal Member (see Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 at [52] - [54]) hence RRT was not precluded by s 424A(1) from drawing the inference which it did. The source of the information was the applicant's solicitor (cf s 424A(3)(b)) and the passage which I have emphasised in par [19] above, is simply an inference which RRT drew from the information given by the applicant.

23 In any event, and assuming that RRT was possessed of relevant information, that information was not specifically about the applicant or another person, and did not rise above information about a class of persons of which the applicant's father may have been a member. Assuming there was information, s 424A did not apply to it by reason of the provisions of s 424A(3).

24       Ground 1.2 makes a similar complaint in relation to the failure to put to the applicant particulars of the absence of media reports of gun battles between the MKO and the Iranian security forces in Tehran during 2000.

25       The relevant portion of RRT's reasons for decision in relation to this ground is:

"I also have regard to the absence of independent evidence that members of the MKO were involved in gun battles with the Iranian security forces in Tehran during 2000. I have referred to press reports of mortar attacks in Tehran by the MKO. These are reasonably detailed and I am of the view that, if shots had been fired in Tehran streets at cars apparently driven by MKO members, press reports would have referred to this. It is open to me to infer from the absence of such reports that security forces did not shoot at MKO cars in Tehran last year. This casts doubt on the plausibility of [the applicant's] claim that, in 2000, he worked on MKO cars which had bullet holes in them."

26 Again, the passage complained of is part of the subjective reasoning process of RRT, rather than an identifiable piece of information disclosable in terms of s 424A. Further, even assuming that it is "information", it is not specifically about the applicant or another person.

27       Ground 2 is that:

"By failing to put to the applicant and his adviser for comment, either at the hearing, or prior to making a decision, that if [RRT] did not accept that he had assisted the MKO, or any opposition group, in the way he claimed, [RRT] would consequently reject his claims that the Basiji became suspicious of him; and

1.1 that he went into hiding; and

1.2 he left Iran using another person's passport in order to avoid security checks; and

1.3 that his home was searched; and

1.4 that his family members were then detained because of political opinion attributed to him;

when [RRT] considered that such information would be the reason or part of the reason for affirming the decision under review, the Tribunal failed to comply with the provisions of section 424A of the Migration Act 1958, and thereby did not observe a procedure within the meaning of section 476(1)(a) which was required by the Act."

28 Again it is common ground that RRT did not put these matters to the applicant for comment prior to the hearing or the making of its decision. There was no obligation upon RRT to do so. These matters are no more than the subjective process of reasoning which caused RRT to reject the applicant's claim. Once RRT came to the conclusion that the applicant was not engaged in repairing cars with bullet holes in them for the MKO or any other opposition group, it logically followed that the applicant's claim built upon that proposition fails. But that was not "information" which enlivened any obligation on RRT under s 424A of the Act to give prior notice to the applicant of particulars of that information.

29       The applicant's further submissions draw attention to the decision in W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 in which Lee J and other members of the Court made some observations as to findings on the part of RRT that particular matters are "implausible". This is not a case in which RRT avoided making relevant findings under the cloak of an observation that the applicant's account was "implausible". Here, RRT explicitly found that the applicant did not assist the MKO or any opposition group in the way which he claimed, and gave reasons for coming to that conclusion.

30       The applicant's submissions on this aspect of the matter do not disclose any reviewable error.

31       The application should be dismissed with costs.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:        13 September 2001

#DATE 13:09:2001

Counsel for the Applicant:	Mr J Cameron
Counsel for the Respondent:	Mr P L Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 August 2001
Date of Judgment:	13 September 2001