Waal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 1220

FEDERAL COURT OF AUSTRALIA

WAAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1220

Judiciary Act 1903 (Cth) s 39B
Migration Act 1958 (Cth) ss 420, 426, 426(3)

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 referred to
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 distinguished
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 applied
Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 distinguished

APPELLANT WAAL OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
W125 of 2002

RD NICHOLSON J
31 OCTOBER 2003
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W125 of 2002

ON APPEAL FROM A FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAAL OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	RD NICHOLSON J
DATE OF ORDER:	31 OCTOBER 2003
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the respondent’s costs of the appeal.

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	W125 of 2002

ON APPEAL FROM A FEDERAL MAGISTRATE OF THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	APPELLANT WAAL OF 2002 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	RD NICHOLSON J
DATE:	31 OCTOBER 2003
PLACE:	PERTH

REASONS FOR JUDGMENT

1. This is an appeal from the decision of Federal Magistrate Driver given on 11 April 2002.  In that decision the application by the appellant to review a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 19 September 2001 was dismissed.  The decision of the Tribunal affirmed the decision of a delegate of the respondent not to grant to the appellant a protection (class XA) visa. 

2. The application for review was lodged on 5 October 2001 and therefore attracted the application of the Migration Act 1958 (Cth) (‘the Act’) as it was amended with effect from 2 October 2001.

   BACKGROUND CIRCUMSTANCES

3. As recounted in the reasons of the Federal Magistrate, the background circumstances to this appeal are as follows (at [6] – [11]):

   ‘The applicant is a citizen of Iran who arrived in Australia by boat as an unlawful non-citizen on 27 September 2000.  He was initially interviewed by an officer of the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) on 6 October 2000.  At that interview the applicant claimed he left Iran because he did not do his national service and did not have the national discharge card.  He also said he had not been involved in activities against any government or political group.

   On 1 May 2001 the applicant lodged Part A of an application for a protection visa with the Department pursuant to the provisions of the Migration Act. On 1 June 2001 he lodged a complete protection visa application. This application was accompanied by a statutory declaration in which the applicant declared that had taken part in a demonstration against the government in Abadan on 6 July 2000; that following a struggle with the national security guards his shirt had been ripped off, and he feared he would be traced because in the pocket was his student ID card; that he had hid at a friend’s house for five days after the demonstration; that his family house was raided twice during this time; that while he was hiding he learnt that the demonstration had been video taped and that he was visible as one of the people ripping photos of Khomeini and Khamani off walls and throwing them in a fire and that after five days he had decided to leave Iran.

   The applicant was interviewed by a delegate of the respondent on 5 June 2001.  On 2 July 2001 the delegate made a decision refusing to grant a protection visa to the applicant.  The delegate was not satisfied that the applicant had participated in the demonstrations at Abadan as claimed.

   On 4 July 2001 the applicant made an application to the RRT seeking review of the delegate’s decision.  The applicant subsequently gave oral evidence to the RRT at a hearing held on 21 August 2001.  Submissions were provided to the RRT by the applicant’s advisers on 28 August 2001. 

   On 19 September 2001 the RRT made a decision affirming the delegate’s decision refusing to grant a protection visa to the applicant.  In arriving at its decision, the RRT concluded that the applicant’s claimed involvement in the demonstrations in Abadan and consequent pursuit by the Iranian authorities was fabricated.

   On 5 October 2001 the applicant lodged an application for review of the RRT’s decision with the Perth registry of the Federal Court of Australia purporting to be pursuant to s. 476 of the Migration Act. The grounds of the application are stated to be that:

   “

   (a)There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion real or imputed if he returned to Iran within the reasonably foreseeable future.

   (b)The decision involved an error of law, being an error of law, involving the incorrect interpretation of the applicable law of an incorrect application of the law to the facts as found by Tribunal or both.”’

   REASONS OF THE TRIBUNAL

4. The claims of the applicant were said to be derivative: first, his participation in the demonstrations in Abadan and secondly, his illegal departure from Iran. 

5. The Tribunal did not accept that he was involved in the demonstrations in Abadan.  The appellant had claimed that he had travelled from Ahvaz to Abadan on the day of the demonstration with his brother, with the express purpose of accompanying his sister back home for her safety.  However, he became separated from his brother and offered no explanation of what had become of his sister. 

6. Furthermore, the applicant’s claim was to have participated in the demonstration by default as he became caught up in the emotion of the moment and his participation to have been limited to pulling down political posters.  The Tribunal found an incongruency between this impact of emotion on him and the limited confinement of the nature of his activities.  Further, it found an inconsistency between the level of rioting and extent of demonstration and the fact that his one-hour involvement resulted in him (as he claimed) being videoed, observed and identified by the Hezbollah.

7. The appellant claimed that after he returned to Ahvaz, his home was under surveillance by authorities.  The Tribunal found that was implausible given the magnitude of the demonstrations in Abadan.  Likewise, it found it implausible that his claimed level of activity would have resulted in the authorities twice raiding his home.

8. Collectively it considered these factors showed that the appellant’s claimed involvement was fabricated. 

9. The Tribunal also concluded that as there were no further instances of claimed action by him, it could not accept that he had an anti-Islamic profile so as to face persecution. 

10. With reference to the circumstances of the appellant’s departure from Iran, the Tribunal accepted that he would not have been granted a passport and would therefore have departed illegally.  Because of this and because he had failed to report for military service it was likely that on his return to Iran he would come to the attention of the Iranian authorities.  There were a range of penalties in a law of general application and the Tribunal was not satisfied those penalties would be imposed in a selective or discriminatory manner against the appellant for any Convention reason. 

    REASONS OF FEDERAL MAGISTRATE

11. The Federal Magistrate, first, rejected a submission that the Tribunal had failed to consider the evidence of the appellant’s brother.  She found that he did give evidence and it was taken into account. 

12. Secondly, in relation to the submission for the appellant that the Tribunal wrongly rejected his evidence of pursuit by Iranian authorities because of his participation in the demonstrations in Abadan, her Honour found that, by a logical reasoning process, the Tribunal had rejected the appellant’s participation in those demonstrations and riots.  There had been no actual or constructive failure by the Tribunal in satisfying itself on the issue.

13. Thirdly, in relation to a submission for the appellant that he was scared when he first arrived in Australia and feared being reported to Iranian authorities so had made no mention of the demonstrations in Abadan in his initial interview, her Honour found it to be immaterial because no reliance was placed on that by the Tribunal. 

14. Her Honour also held that the Tribunal was entitled to reach the conclusion which it did concerning the effect of the failure by the appellant to report for military service and the attraction of penalties of general application to that circumstance.

15. When the Tribunal held its hearing and reached its decision it did so on the basis that the only basis for review under s 39B of the Judiciary Act 1903 (Cth) was on the limited grounds arising from R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.

    GROUNDS OF APPEAL

16. By a further amended notice of appeal it is alleged that there was a jurisdictional error in the findings of the Tribunal.  This is said to be constituted by a failure to take into account relevant material including the evidence of the appellant and corroborative evidence of his brother in relation to the demonstrations in Abadan.  Additionally, it is contended that there is no evidence or other material to justify the Tribunal’s decision that there was no well-founded fear of persecution by the appellant if he returned to Iran within the reasonably foreseeable future.

17. A further ground alleges that the decision of the Tribunal was not a bona fide attempt to exercise its power.

18. At the hearing of the appeal the respondent did not object to the further amendment of the grounds to add a ground to the effect that the Tribunal denied the appellant procedural fairness in two ways.  The first such way is that it did not allow the representative of the appellant to question or lead evidence from the appellant’s brother.  The second is that it did not ask the appellant’s brother any questions so as to test his corroboration of the appellant’s evidence.

19. It is common ground that the issues in the appeal now fall for determination in the light of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.

    FAILURE TO CONSIDER EVIDENCE

20. Evidence was led of a portion of the transcript of the hearing before the Tribunal.  That portion is the evidentiary basis upon which the case for the appellant seeks to support both this ground and the ground of breach of the requirements of procedural fairness.

21. The portion of the transcript discloses that the appellant had requested that his brother be permitted to give evidence.  The Tribunal member stated that she did not have any questions to ask the brother but he was at liberty to make a statement.  The flavour of the relevant passage is contained in the following extract from it:

    ‘INTERPRETER:       I just would like to say that my brother and I attended the demonstrations on 15 [unclear] 13 79 and we went to Abadan to the hospital and then afterwards we got separated and then I have found out through my mother’s cousin that my brother’s life is in danger for attending the demonstrations and the family.  And his problem is the posters and the stickers saying he is wanted by the authorities and I don’t know what else to say … just that his life is in danger, his life is in danger.  And the reason I failed my RRT interview was because the Member who was there, just failed everybody, he failed all of us – the Member was there just not to give visas to anybody and we all failed. 

    DR O’CONNELL:      Why do you say your brother’s life is in danger?

    INTERPRETER:        Because my brother was present at the clashes.

    DR O’CONNELL:      Who is his life in danger from?

    INTERPRETER:        From the government, from the government side.

    DR O’CONNELL:      Can you be more specific?

    INTERPRETER:        Because we are involved in the demonstrations and clashes that were against the government and there were government property and religious places that were damaged and whoever has been in the fight with the supreme leaders and also the government is known as the enemy … known as [unclear] and will be punished for it.

    DR O’CONNELL:      Thank you is there anything else you would like to say?

    INTERPRETER:        No just if you have any questions I can answer them.

    DR O’CONNELL:      No I don’t really have any questions – most of these things I have already covered with the Applicant and I also have a witness submission from the Applicant.  You haven’t told me anything new that the Applicant hasn’t told me so there isn’t really any need to ask you any specific questions.’

22. The contention for the appellant in connection with the present ground is that examination of the reasoning of the Tribunal shows that it failed to take into account the evidence of the appellant’s brother.  It is true that such examination discloses an absence of reference to the evidence of the brother in the section of the Tribunal’s reasons headed ‘Findings And Reasons.’  However, I do not consider that has the consequence that it can properly be found that the Tribunal failed to take the evidence into account.

23. The first reason why that is so is that the reasons of the Tribunal do recite the evidence of the appellant’s brother in another portion of the reasons.  There it was said:

    ‘The witness who was the applicant’s brother was contacted via telephone link up.  The witness was asked to make his statement.  The witness stated that his brother’s life was in danger.  The witness also stated that he was with his brother at the hospital in Abadan.  The witness was asked why his brother’s life was in danger.  The witness stated that his brother had pulled down posters and for this reason he would be treated as anti-government.’

    (It should be observed that this summary of the appellant’s brother’s evidence was in fact more favourable to the appellant than the brother’s evidence allowed.  In that evidence as quoted above, the brother did not claim direct knowledge of what had happened to the appellant or what he had done after they had become separated at the Abadan demonstrations.)

24. The second reason is that it was open to the Tribunal to disbelieve the appellant’s testimony independently of the evidence of his brother.  Having concluded it did not accept the appellant’s primary testimony, there was no requirement for the Tribunal to consider whether it was corroborated by the evidence of his brother.  Indeed, it was clear from the content of the brother’s evidence that he could not corroborate, other than on a hearsay basis, what had occurred after he claimed they were separated.  It was that subsequent events which were at the heart of the appellant’s claims to have a well-founded Convention related fear of persecution.  This was not a case where it can be said that the Tribunal in the circumstances was obliged to again refer to the evidence of the brother.

25. The Tribunal’s reasons for decision demonstrate that it gave consideration to the appellant’s claims to have been involved in the demonstrations in Abadan and to have a well-founded fear of persecution as a result of such participation.  As the above summary of the reasons of the Tribunal shows, there were various considerations which led it to the firm conclusion that the appellant’s claimed involvement and consequent pursuit by Iranian authorities were fabricated.  I accept the submission for the respondent that what the appellant seeks to attack, in reality, is the Tribunal’s reasoning process and the merits of its decision. 

26. In my opinion examination of the reasons of the Tribunal does not disclose any jurisdictional error constituted by a failure to consider evidence. 

    PROCEDURAL FAIRNESS

27. The additional ground of breach of the requirements of procedural fairness relies on the two contentions: (1) Tribunal member failed to ask the appellant’s brother any relevant questions; and (2) that the appellant was not given the opportunity to ask the witness any questions.  

28. The requirements of procedural fairness take their colour from the legislative context in which the inquiry is conducted and require attention to the relevant statutory provisions.  Here it is not contended for the respondent that the statutory provisions displaced the normal requirement for procedural fairness in any relevant way.  Nor is it contended for the appellant that he was denied the opportunity to bring evidence which he wished to bring.  What is contended is that he was denied the opportunity to have his representative question the brother and the Tribunal member herself did not do so.  That turns attention to the legislative provisions concerning the hearing before the Tribunal.

29. Part 7 of the Act addresses review of protection visa decisions by the Refugee Review Tribunal. Section 420 in Div 3 provides that the Tribunal is to pursue review which is fair, just, economical, informal and quick and that it is not bound by technicalities, legal forms or rules of evidence and must act according to the substantial justice and merits of the case. That has the consequence that the Tribunal was not bound to ensure that the whole of the evidence of the appellant was put in cross-examination to the appellant’s brother so as to test the degree of corroboration between the two statements.

30. Division 4 of Pt 7 contains various provisions concerning the conduct of the review, including the powers of the Tribunal to seek additional information. None of those provisions in terms requires the Tribunal to ask questions of witnesses; nor is it contended for the appellant that such can be implied. Section 426 in the Division recognises that an applicant may by written notice require a Tribunal to obtain oral evidence from a person or persons named in the notice. It is common ground that such a notice was given here in respect to the appellant’s brother in the appellant’s response to the hearing invitation. Section 426(3) provides, however, that while the Tribunal must have regard to the applicant’s wishes, it is ‘not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.’ In those statutory circumstances it cannot be successfully contended that there was a duty on the Tribunal to question the witness so that, failing such questioning, there could be said to be a breach of procedural fairness.

31. It is not disputed that in the selected portion of the transcript upon which the appellant’s case relies, an inquiry was made, arguably from the appellant’s representative attending the hearing by telephone, as to whether the Tribunal member would like her to question the appellant’s witness.  No such opportunity was provided.  However, no such opportunity was sought by the representative following the completion of the statement by the witness.  Further, and in any event, the appellant provided detailed written submissions subsequent to the Tribunal hearing.  The appellant’s representative did not complain that the appellant’s brother had not been able to give evidence which the appellant wanted him to give or suggest what the nature of such evidence might have been.

32. Nevertheless it is argued for the appellant that had such questions been allowed, evidence may have been led which could have affected the outcome of the appellant’s case by disclosing the corroborative value of the evidence of his brother.  Reliance was placed upon WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [42] and [58]. The contentions for the appellant on this aspect also point to the general circumstances of the way in which the Tribunal member went about preparation of her reasons. It is submitted that she went to great lengths to identify ‘implausibilities’ in the evidence of the appellant. In that context her failure to question or allow questioning of the appellant’s brother should be seen as having profound consequences for the appellant. This was because the consequence was that it could not be known what extent the appellant’s brother’s expanded evidence could have influenced her decision.

1. The present is not a case where a Tribunal has made a decision without giving notice on an issue adverse to the appellant.  There was no denial of the opportunity to bring the evidence or to lead further evidence once the statement had been made.  There is nothing in the particular circumstances or the statutory provisions which could properly ground the allegation of a breach of a duty of procedural fairness.  Rather this is a case where the Tribunal’s view of the evidence of the appellant occasioned it to be uninfluenced by the brother’s evidence because of its view of the appellant’s credit; and that does not involve any error of law: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [49] per McHugh and Gummow JJ cited in WACO at [41]. Additionally it is patent from the evidence given by the brother that he could not corroborate the evidence of the appellant beyond his limited involvement with him. I therefore do not consider this ground succeeds.

   NO EVIDENCE

2. In my opinion the Tribunal was clearly correct in concluding that penalties for persons who failed to report for military service in Iran are the result of laws of general application.  The laws are not, in their terms, applicable only to a particular section of the population:  cf Chen Shi Hai v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293.

3. Further, and in any event, the Tribunal was not satisfied that the penalties would be imposed in a selective or discriminatory manner against the appellant for any Convention reasons.  The Tribunal did not accept that the appellant had an anti-Islamic profile because of claimed participation in the Abadan demonstrations and he had not made any other claims which would support a finding that he would suffer persecution in the application of a penalty for avoiding military service or for returning to Iran. 

4. There was material on these issues before the Tribunal which supported these conclusions.

   BONA FIDE EXERCISE OF POWER

5. The Tribunal’s reasons for decision do not disclose that its decision was not a bona fide attempt to exercise its power.  No case has been properly made in this respect for the appellant. 

   CONCLUSION

6. For these reasons I do not consider that there has been any jurisdictional error established in relation to the Tribunal’s decision.  It follows that the appeal should be dismissed.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

Associate:

Dated:             31 October 2003

Pro Bono Counsel for the Applicant:	Mr T Hammond
Counsel for the Respondent:	Mr PR Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	16 August 2002, 7 February 2003, 28 October 2003
Date of Judgment:	31 October 2003