FEDERAL COURT OF AUSTRALIA

Mohsen Soltanyzand v Minister for Immigration & Multicultural Affairs [2000] FCA 917

MIGRATION – REFUGEES – application for review of decision that the applicant was not a person to whom Australia owed protection obligations – whether the interpreting service provided at the Tribunal hearing was inadequate resulting in a reviewable procedural error – whether there was a relevant departure from the required standard of interpretation – whether actual bias on Tribunal’s part.

Migration Act 1958 (Cth)

Dabare v Minister for Immigration & Multicultural Affairs [2000] FCA 731, cited

Geng v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556, referred to

Ismail v Minister for Immigration & Multicultural Affairs [1999] FCA 1555, applied

Kahn v Minister for Immigration & Multicultural Affairs (1998) 57 ALD 371, cited

Khelifi v Minister for Immigration & Multicultural Affairs [2000] FCA 791, cited

Khogali v Minister for Immigration & Multicultural Affairs [1999] FCA 1076, cited

Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, applied

Phan v Minister for Immigration & Multicultural Affairs (2000) 171 ALR 323, cited

Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (1997) 151 ALR 505 , applied

Zaltni v Minister for Immigration & Multicultural Affairs [2000] FCA 399, referred to

Zoeller v Federal Republic of Germany (1989) 23 FCR 282, referred to

MOHSEN SOLTANYZAND V MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 166 OF 1999

CARR J

12 JULY 2000

PERTH

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs of the application.

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

REASONS FOR JUDGMENT

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal, made on 17 December 1999, by which the Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.

2                     The applicant is a 29 year old male citizen of Iran.  He arrived in Australia on 16 January 1999.  On 22 January 1999 he lodged an application for a protection visa with the Department for Immigration and Multicultural Affairs (“the Department”).  That application was refused on 17 February 1999.  On 26 February 1999 the applicant applied to the Tribunal for review of that decision.  On 9 June 1999 the Tribunal (I shall, for convenience, refer to the Tribunal as it was then constituted as “the First Tribunal”) affirmed the decision of the Minister’s delegate (“the First Tribunal Decision”).  The applicant then sought judicial review of the First Tribunal Decision.  On 7 September 1999 Lee J made orders, by consent, setting aside the First Tribunal Decision and remitting the matter to the Tribunal, differently constituted, for reconsideration.

Application for an Order of Review

3                     The applicant was unrepresented when the matter first came on for hearing on 22 March 2000.  It became apparent that the applicant’s real complaints were that his evidence to the Tribunal had been mis-translated and that the Tribunal was biased against him.  The applicant was granted leave to amend his application to incorporate those matters.  I referred the applicant, pursuant to O 80 r 4(1) of the Federal Court Rules, for all of the kinds of assistance referred to in O 80 r 5.  The hearing was then adjourned.  On resumption of the hearing on 6 June 2000, Ms A.M. Sheehan of counsel appeared, on a pro bono publico basis, for the applicant.  The Court is grateful to her for her considerable assistance in this matter.  The grounds of the amended application were as follows:

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

  (b)     The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before  it.

(c)        The Tribunal erred in law in failing to provide adequate or proper interpreting services.

(d)               The Tribunal was affected by actual bias, in proceeding to consider the case from a preconceived opinion.”

At the resumed hearing only grounds (c) and (d) were pressed.

The Tribunal’s Reasoning

4                     The Tribunal identified the applicant’s claims as having been made at Perth Airport when he was interviewed on arrival in Australia, in his form of application for a protection visa, in written statements and submissions, at an interview with the delegate of the respondent, in sworn oral evidence given to the Tribunal which made the First Tribunal Decision and to the Tribunal as later constituted. 

5                     The Tribunal accepted a great deal of the applicant’s evidence concerning his personal background, his education and his career.  I shall indicate where it did not do so.

6                     The applicant was born in Tehran.  He completed a four year apprenticeship as a mechanic in 1989.  He also completed his military service and an apprenticeship as an auto-mechanic.  The first piece of his background evidence which the Tribunal rejected related to the circumstances of his leaving school and his membership of a paramilitary voluntary force known as the Basiji.  The applicant claimed that he was forced to join the Basiji after he was expelled from school for listening to western music.  The Tribunal did not believe either claim.   It noted evidence that the Basiji was a voluntary group, that the applicant had served three periods of service with them, that the Basiji had sponsored him through a scholarship and that he was able to obtain employment in the court system and gain promotion partly because he had Basiji contacts.  It also noted what it described as “a very positive report from his secondary school”.  Although the Tribunal accepted that the applicant was a member of the Basiji, it concluded that he joined that organisation voluntarily. 

7                     In 1990 the applicant obtained employment as a clerk in the Department of Justice in Shisda.  He worked with a judge and a support team that prosecuted offences committed by members of the military and the public service.  He claimed to have been detained and mistreated in 1991 as a result of an incident arising out of his employment.  A colonel had been charged in respect of various offences (the applicant’s evidence concerning these offences varied over time).  Initially the applicant stated that he had personally complained to the judge about the weak sentence imposed on the colonel.  His version of what he told the judge also changed over time.  He claimed that the judge ordered that he be gaoled for eight days, but then he was released with the explanation that there had been a misunderstanding.  I shall refer to this as “the 1991 incident”.  After his release, he was transferred to Tehran where he was later promoted to become a prosecutor’s assistant.

8                     The Tribunal found it implausible that the applicant would be imprisoned for several days, (on either version of the applicant’s account of the 1991 incident) and then released and transferred to his home city.  It expressed the view that even if the judge had somehow arranged for the applicant to be detained, that had been motivated not by the applicant’s political opinions or for any other Convention reason, but because he had personally insulted the judge.

9                     The applicant did not encounter any further difficulty during the six year period between 1991 and 1997.  There then occurred what I shall refer to as “the 1997 incident”.  The applicant gave various versions of the 1997 incident.  Money laundering charges had been made either against a named “Parliamentary Speaker” (the description given to that person by the applicant in an unsigned form headed “Statutory Declaration” annexed to his application for a protection visa which I shall refer to as “the Statutory Declaration Form”) or (in a later description) another prominent person whose name the applicant could not remember, with the parliamentarian being referred to on the file.  At the hearing before the Tribunal, the applicant stated that the politician was not mentioned in the file, but had called the court on the day the judge was handing down his verdict and told the applicant that he wanted to speak with the judge.  The applicant said that he told the “interrogator” about the politician’s call, that the message was passed on to the judge who then spoke to the politician.  The accused was then “forgiven” and no verdict was issued.  The applicant stated that when the file was returned to him, he noted that papers were missing from it and he told the judge about that.  The following day a civilian came to his office and told him to be careful about “sticking his nose in”.  The next day he was riding his motorcycle to work when he was stopped by a colonel from the Intelligence Department accompanied by a captain and another soldier.  He was accused of stealing the motor cycle, detained for three days before being beaten and dumped in the street.  He claimed that he tried to trace the colonel and, despite making a complaint, his assailants were never found.  Following that episode, the applicant claimed that he was hampered in his work; files or documents he was preparing for court would disappear.  In the meantime he continued, so he claimed, to complain about lenient sentences handed down by the courts and came to realise that the authorities were corrupt.  After the 1997 incident he began to make notes about various files and to keep that information in a notebook and on floppy disks for his computer.  The information related to judicial protection of government leaders and supporters.  This included a person named Kazemi who was a member of the security forces and was charged with torturing members of parliament.  The applicant claimed to have “boycotted” his employment for a month to demonstrate his objection to the theft of his files.  He told the Tribunal that thereafter he was offered a job as a prosecutor at twice his assistant prosecutor’s salary and with other privileges.  The applicant claimed that this offer was made to keep him quiet and make him “one of them”.  He had declined the offer.

10                  The applicant claimed that Iranian security personnel had searched his house and confiscated his notebook and computer disks containing information about corrupt members of the government and bureaucracy.  He gave, again, varying versions of when and how this occurred.  At p 14 of its reasons the Tribunal said this:

“Not only has the Applicant changed critical details and forgotten others, the offer of a promotion is contrary to the fate he alleges is encountered by those who pose a threat to the authorities.  Moreover, he claims that he refused the promotion and stayed at home yet, having refused the bribe to keep quiet, he was not targeted by those whose careers he threatened.  In later submissions, he claims he was hiding, although that contradicts the information he provided about where he lived in Item 30 of the protection visa application form.  The Tribunal finds his story about the incident in 1997 to be far-fetched and it concludes that he has fabricated it in order to increase his chances of gaining recognition as a refugee.”

11                  Next there is the matter of a letter which the applicant said he wrote to a magazine which he initially (in the, unsigned, Statutory Declaration Form) described as “Zane Rooz” whose editor he named as Faeze Rafshanjani.  He said that he wrote the letter anonymously but put his address on the back of the envelope.  The authorities had traced him and he was “harassed and surveilled relentlessly.”  The applicant gave varying versions of the name of the magazine and the contents of the letter or article.  At one stage the applicant said that he had not made any inquiry as to whether the article had in fact been published.

12                  The applicant also produced a warrant which, on the face of it, was dated 2 December 1998 and required the applicant’s attendance before the revolutionary court, Central Branch Office of the enforcement of Court Ruling, Inquiry Section No. 2, on 6 December 1998.  The reason for attendance was described as “to respond to the matters as inquired”.  In relation to these claims the Tribunal said this:

“The Tribunal finds the Applicant’s claims that he had an article about corruption and terrorism published in Tehran to be fanciful and far-fetched, regardless of whether or not he meant to state it was published in “Zan” of Zan e Rooz” (sic).  His background is that of a conservative member of his religion and society and his accounts of his dissident actions and the response of his employers and other authorities do not ring true.  He has altered his claims in successive submissions in response to indications that they may not be believed and he has embellished those claims as his protection visa application has been processed.  The Tribunal does not believe he had confrontations with his employers, took and stored information from Court files or that he was ever suspected of harboring dissident opinions.  It is satisfied that he was not in any danger of persecution for a Convention reason when he left Iran.  In arriving at those conclusions it has taken into account the court warrant he provided.  The Tribunal does not accept that he was under suspicion for the reasons he stated.  Whether or not it is genuine, the warrant does not disclose any reason for the Applicant being called to court.  In all of the circumstances, the Tribunal concludes that it is not a summons in relation to his claims that he has exposed some Iranian leaders as corrupt and involved in terrorism and it is not an indication that there is a real chance he faces persecution for a Convention reason.”

13                  The Tribunal then turned to the applicant’s claims that he was a refugee sur place by reason of events which had happened since he left Iran in November 1998.  The applicant claimed, in written submissions of 18 November 1999, that he had been providing information to Persian media outlets in Australia, such as giving radio interviews which were critical of the Iranian regime and exposing details of human rights abuses, including the recent murder of a number of intellectuals suspected of opposing the regime.  Initially the applicant said that he had also written letters in the same vein to Persian newspapers abroad.  The applicant told the Tribunal that he had written articles to Australian Persian publications from the time that he had arrived in Perth, but he had not checked whether they had been published.  The articles told why he had left Iran and referred to his letter to the newspaper named “Zan”.  The applicant told the Tribunal that he had made contributions on many occasions to an Australian weekly radio show, transmitted in Persian, since April 1999, had disclosed his name, that he was an Iranian asylum seeker in Port Hedland, that he was nationalistic and gave information which he had obtained about state terrorism including the instigation of “chain killings” of intellectuals by the state and the complicity of Mr Kazemi in those killings. 

14                  The applicant produced an unsigned letter from a Mr Farivorz Mansouri described in the letter as the “Manager of the Persian Herald Newspaper and the Voice of Persian Radio Program”.

15                  The Tribunal, having adjourned specifically for that purpose, took evidence from Mr Mansouri about the applicant’s contacts with him.  In relation to these claims the Tribunal said this:

“Mr Mansouri’s evidence was somewhat general and a little uncertain, although that is understandable given that he said he receives a large quantity of correspondence and has other people on his radio show.  The Tribunal accepts that the Applicant has spoken on the show and has identified himself and claimed to have inside information that some of the leaders of the Iranian regime, specified by the Applicant, are corrupt and terrorists.  The show on which he appeared is a local Sydney show and the chances that Iranian authorities were not only listening but recorded the Applicant’s name and have reported his claims to authorities in Iran are slim but even if that occurred, the Tribunal has no doubt that a check on the Applicant’s history will indicate that he was a loyal employee of the Justice Department and a member of the Basiji.”

16                  The Tribunal then turned to what it described as a “significant aspect of the applicant’s claims” i.e. that he was a danger to corrupt officials because he could disclose information about killings which occurred in 1998.  The Tribunal referred to a Reuters report and concluded as follows:

“As the applicant says he was not there when the killings occurred, the Tribunal is satisfied he has no information about the perpetrators and that his lack of information would be obvious to any official who might investigate his comments on the radio in Australia.  It is satisfied that he is no threat to the authorities, who appear to solving (sic) the deaths of the intellectuals mentioned in the above article, whether or not their targets are innocent.”

17                  The Tribunal then referred to two further articles published in July 1999 and an Australian Department of Foreign Affairs and Trade Country Information Report of 22 September 1999 concerning demonstrations, riots and arrests in Iran.  The Tribunal drew in its conclusions in the following terms:

“While it is apparent that a significant number of people were detained and a few have encountered very serious punishment, in some cases the death penalty, it also appears that many of the victims were political agitators or perceived political enemies.  The Applicant has no history to indicate he is a political enemy of the current regime and nor do the authorities have any reason to believe he can threaten them.  While many were arrested during the demonstrations, hundreds of thousands who took to the streets to protest remained unharmed.  In considering the Applicant’s claims in the context of his history in Iran and the responses of the Iranian authorities to expressions of protest, the Tribunal finds that even if he did make the comments he claims to have made on the radio and they are known to the Iranian authorities, there is not a real chance he will encounter serious harm for that reason.  Indeed, on his own evidence, if the authorities did have any adverse interest in him, they would be motivated by the desire to silence him for personal reasons and not by his political opinion, which his history demonstrates is shared by the people he claims may harm him.

In summary, the Tribunal find (sic) the Applicant was not a refugee when he left Iran.  In regard to his fears about the consequences of his actions in Australia, the Tribunal finds that there is not a real chance he faces persecution and, in the remote possibility that he might be harmed, the motivation of those he fears in (sic) not related to the Convention but would be motivated by personal reasons.  The Tribunal is satisfied he has not become a refugee sur place.  In arriving at its conclusions, it has taken into account the concerns expressed about interpreting errors and finds that they were of no import and do not alter the Tribunal’s conclusions.

After considering the information before it, the Tribunal finds that the Applicant is outside Iran, his country of nationality, but there is not a real chance he faces persecution on account of his real or imputed political opinions or for any other Convention reason.  It is not satisfied that he is a person to whom Australia has protection obligations and finds that he does not meet that criterion for the purposes of granting a protection visa.”

18                  It will be apparent from the above that the Tribunal’s conclusions were largely based on rejection of the applicant’s various factual claims.  That is, the Tribunal disbelieved the applicant and rejected his key claims on credibility grounds.  It made strong credibility findings against the applicant.  The Tribunal, at each stage, gave its reasons for not believing the applicant.  They included, but were not confined to, significant changes in the various versions of events given by the applicant over a relatively short period of time.

19                  As I  have mentioned above, counsel for the applicant did not press grounds (a) and (b) of the application, but I shall refer to them briefly.  In relation to Ground (a), in my view, there is nothing in the Tribunal’s reasons which indicates that it either incorrectly interpreted the applicable law or incorrectly applied that law to the facts as found by it.  Ground (b) may not be a ground of review.  If it is then, in my opinion, it has not been made out.  There was ample evidence to support the Tribunal’s findings of fact and it is quite clear from its reasons that it gave due consideration to the evidence before it.

Adequacy of interpretation and actual bias [Grounds (c) and (d)]

20                  There were no differences between the parties about the legal principles to be applied where there are allegations of inadequate interpretation of proceedings before the Refugee Review Tribunal.  The authorities establish that where an applicant for refugee status cannot adequately express himself or herself in English, the Tribunal is under a statutory obligation arising under s 425 and s 427 of the Migration Act 1958 (Cth) (“the Act”) to provide a competent interpreter, who in fact provides competent interpretation.  The test for whether there has been a departure from the requirement of competent interpretation has been variously expressed in the authorities including Perera v Minister for Immigration & Multicultural Affairs (1999) 92 FCR 6, a decision relied upon by both the applicant and the respondent.  In Perera, the standard was expressed in terms of whether the interpretation had been so incompetent in relation to a matter of significance for the applicant’s claim, or the Tribunal’s decision, that the applicant was prevented from giving his evidence.  In following Perera, Lee J, in Ismail v Minister for Immigration & Multicultural Affairs [1999] FCA 1555 (at 26) expressed the view that the essential requirement was that the interpretation provided, be of sufficient standard to ensure that justice is done and seen to be done, citing Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 290‑292.

21                  I do not propose to canvass the authorities further other than to cite some of them.  They include Kahn v Minister for Immigration & Multicultural Affairs (1998) 57 ALD 371; Khogali v Minister for Immigration & Multicultural Affairs [1999] FCA 1076; Dabare v Minister for Immigration & Multicultural Affairs [2000] FCA 731; Khelifi v Minister for Immigration & Multicultural Affairs [2000] FCA 791 and Phan v Minister for Immigration & Multicultural Affairs (2000) 171 ALR 323.

22                  I propose to assess whether interpretation errors led the Tribunal to make adverse findings material to the applicant’s claim, or otherwise affected the Tribunal’s reasoning in a material respect, including its reasoning about the applicant’s credibility.  That will also include assessing whether, as the applicant submitted, interpretation errors played a material part in causing actual bias.

23                  The parties were also in agreement that to establish actual bias, it had to be shown, on cogent evidence, that there had been pre‑judgment i.e. that the decision‑maker was unable or unwilling to decide the matter impartially and held a view which was not open to change by the relevant facts falling for consideration:  Sun Zhan Qui v Minister for Immigration & Multicultural Affairs (1997) 151 ALR 505; Geng v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556 ; and Zaltni v Minister for Immigration & Multicultural Affairs [2000] FCA 399.

24                  The applicant’s case was put on the basis that an examination of the transcript of evidence before the Tribunal and its reasons for decision (and the documents which were before the Tribunal) showed these two legal errors of inadequate interpretation and actual bias separately, but that they were also strongly related to each other.

25                  The applicant submitted that each finding of credit by the Tribunal showed either actual bias, interpreting errors, or both.  When the matter was considered as a whole, the overwhelming inference, so it was put, was that the Tribunal considered the case from a pre‑conceived opinion, subconsciously affected by the previous findings against the applicant’s credit and in doing so had ignored the difficulty in communication.  The Tribunal had effectively found on matters of credit, so the applicant submitted, on the basis of what it considered to be prior inconsistent statements.

26                  The applicant contended that on closer examination, the applicant’s earlier statements were not in fact inconsistent, or altered in any relevant degree, nor were the substantive claims added to.  The applicant claimed that interpreting errors infected most of the findings of credit.

27                  It is convenient to deal with these issues, as the applicant did, by reference to the five main matters, but at the same time, keeping in mind the overall process of the Tribunal’s reasoning and whether it erred in the respects alleged by the applicant in reaching its conclusions.  The five main matters can be described as the membership of the Basiji, the 1991 incident, the 1997 incident, the magazine “Zan” and the applicant’s activities sur place.

Membership of the Basiji

28                  The starting point with this issue is what the applicant contended was the Tribunal’s misunderstanding of his evidence.  Counsel for the applicant submitted that the applicant had not said that he had been forced to join the Basiji.

29                  The relevant part of the applicant’s evidence before the Tribunal (T 7) was:

“I was expelled from the school and I had no other alternative and option but join the student Bassiji in order to continue my education and study.  From that time I entered in the student Bassiji as a student Bassiji”.  [The applicant’s evidence disclosed that there were two Basiji (the spelling varies) organisations, one at student level and a more senior group comprising militia which eventually were given army rank].

30                  The Tribunal was well aware of the First Tribunal’s reasoning on this point.  The First Tribunal [AB 77] summarised the applicant’s evidence before it on the point as follows:

“He stated that he had been recruited into the Basiji in the first year of his secondary education.  He claimed to have been expelled from his normal school because he was listening to cassettes of Western music and was interested in Western fashions.  He was offered a scholarship by the Basiji on condition that he entered Bohonor College, a technical school where he studied electro‑mechanics”.

31                  It would appear that, before the First Tribunal, the applicant had claimed that the Basiji had funded his secondary education on condition that he joined the group after graduation.

32                  The First Tribunal stated that it did not accept that claim.  It reasoned that the applicant’s career indicated that he was favoured by the more fundamentalist elements of the Iranian system and that accusations that he was influenced by western values would have worked against him being educated at the expense of the most reactionary elements in Iran.  The First Tribunal also took into account a certificate from the Soroush Junior High School [AB 55].

33                  It is apparent from the applicant’s application for a protection visa [AB 31] that this was the first school which he attended for his secondary education and that he attended it from September 1982 to June 1985.  The certificate confirms that the applicant had been a year three student in the educational year of 1983‑1984 and had passed the May examinations at the first attempt.  It concluded “His behaviour and discipline has been most satisfactory.”

34                  The First Tribunal took into account that certificate when it concluded that the applicant had not been disadvantaged in the matter of his education, and that he had no adverse profile to carry with him into later employment [AB 83].

35                  In one sense, it would not be a misconstruction of the applicant’s evidence to understand it as an assertion that he had been “forced” to join the Basiji i.e. because he would not have been able otherwise to pursue his studies.  However, it is clear that the Tribunal understood the applicant to be claiming that he was subjected to a greater degree of compulsion to join the Basiji – see the Tribunal’s reference to the applicant’s conduct as not appearing to be “…the conduct of somebody press-ganged into the organisation”.

36                  The applicant submitted that the issue of his membership of the Basiji was “essentially irrelevant” to the claim for refugee status.  There was no complaint about the standard of translation in relation to the Basiji issue.  Rather, the complaints were as follows.

37                  First, it was contended that the Tribunal’s findings were based upon a pre‑conceived opinion that as the applicant’s credit had previously been in issue with respect to his Basiji membership, it was a matter to be explored.  The Tribunal, in reaching a negative view of the applicant’s credibility on this issue, had relied upon the First Tribunal Decision.  The applicant conceded that on their own, the Tribunal’s findings on this issue were not of significance but that they “set the tone as to how the central factual matters were dealt with and how findings against credit were made notwithstanding the general consistency of the story.”

38                  I consider that it is important to observe that the Tribunal prefaced its reasons by noting that it might be obliged to make an assessment of the applicant’s credibility and that in doing so it expressly recognised the difficulty which asylum seekers might encounter in corroborating their claims.  The Tribunal said that it was aware that if the applicant were not credible in one aspect of his claims, that did not mean that other aspects of those claims were not credible or that he could not come within the definition of Refugee.  The Tribunal also noted that, unless there were good reasons to the contrary, it was appropriate to give the applicant the benefit of the doubt where he had been generally credible, but had made statements that were not susceptible of proof.  The authorities show that, in the absence of good reason to the contrary, the Tribunal’s reasons should be taken at their face value i.e. that these were not mere empty words.

39                  In my view, the Tribunal’s reasoning itself provides some indication that its prefatory remarks reflected how it approached the matter.  I refer to the fact that the Tribunal was prepared to accept, and did accept, that the applicant was a member of the Basiji.  However, it concluded that he joined the Basiji voluntarily.

40                  In my view, the issue of the applicant’s membership of the Basiji had some relevance to the question whether he was a refugee.  First, it was relevant to the question whether the applicant had what the Tribunal described as “any dissident blemishes on his record”.  It was also relevant, to some extent, to the question whether the applicant had political beliefs opposed to the Iranian Government.  I say to some extent, because the relevant events (membership of the Basiji) occurred many years before the events which led up to the applicant’s departure from Iran.  Additionally, the Basiji matter was also relevant to the question of the applicant’s credibility.

41                  I can see no legal error in the manner in which the Tribunal dealt with the issue of the applicant’s membership of the Basiji.  I have mentioned what appears to be an error of construction, but that was not based upon any errors of interpretation and, consequently, in my view, is not reviewable under that ground.

42                  The Tribunal’s conclusions were based on country information about the nature of the Basiji being a voluntary group, the fact that the Basiji sponsored the applicant through a scholarship, that he served three periods of service with the Basiji, the very positive report from his secondary school and the fact that at his airport interview he had claimed to be a member of the Basiji, but had made no mention of being forced to join it.

43                  The Tribunal certainly referred to the First Tribunal Decision, but only in respect of the very positive school report.  In my view, it was quite entitled to do so and nothing in its reasoning or in any other evidence suggests actual bias on its part.

The 1991 incident

44                  I deal first with the complaints about interpretation relevant to this incident.  The Tribunal based its rejection of the applicant’s account of this incident on several matters. 

45                  The first was what the Tribunal found to be an alteration in the applicant’s account of the source of the complaint made to the judge.  The Tribunal noted that in the applicant’s early submissions he had made it clear that he was personally affronted by the judge’s verdict and told him so.  Counsel for the applicant submitted that, in substance, there had been no alteration of the applicant’s account in this respect.

46                  It is quite clear that there was evidence before the Tribunal entitling it to characterise the applicant’s initial claim as being one of personal affront.

47                  In the Statutory Declaration Form there is the following passage [AB 39]:

“2.       My problem started in 1991.  I was detained for eight days in Shishda Prison in the province of Illam whilst I was still a clerk in the Department of Justice.  I had earlier complained to a Judge about a lenient sentence meted out to an Army Colonel who had abused his underlings.  The sentence was so lenient I thought he must have been related to the Judge.  In his displeasure the Judge decreed that I be put in jail.  Immediately on my release I was transferred to Tehran where I worked as a co Justice.  It was not until 1997 that I had another stint in prison.”

48                  Counsel for the applicant pointed out that the Statutory Declaration Form was unsigned.  However, it had been prepared by the applicant’s then migration agent and forwarded to the Tribunal under cover of a letter dated 28 January 1999.  That letter stated that the signing of the statutory declaration would be attended to, after it had been interpreted into the Farsi language, but that the agent did not anticipate any significant changes.  In fact, no changes were made.

49                  At the hearing before the Tribunal the applicant complained about mistakes having been made by his then migration agent.

50                  It is clear from the reasons of the First Tribunal (see p 8 – AB 78) that by that stage the applicant had given evidence that other affected people were upset about the verdict and had complained.  There is no suggestion that any interpreting error led to the Tribunal’s assessment that the applicant had altered his account.  In my opinion, the evidence before the Tribunal clearly justifies that assessment.

51                  The next factor is more problematical.  I set out below the relevant passage from the Tribunal’s reasonings:

“He told this Tribunal that the accused was acquitted and fined.  At the resumed hearing, he seemed to indicate that the accused had been fined but no conviction was recorded.  For a person who worked in a prosecutor’s office, it is hardly credible that he would be unaware of some of the basic terms related to his line of work, yet he confused those terms.  Over successive submissions, he has provided various descriptions of the offences of the accused.  He stated that the accused was charged with taking bribes to allow soldiers to leave the Army, but when the Tribunal pointed out that those people were hardly likely to complain about his trial and the outcome, he added that other soldiers had been the victims of abuse and there was also an incident involving a towbar where a soldier died.  The Applicant’s confusion and embellishments, in the Tribunal’s view, are an indicator that the Applicant was falsely creating evidence in response to questions rather than accurately relating a true account of events.”

52                  My concerns stem from that part of the Tribunal’s conclusion which is based on what it assessed was the applicant’s confusion of terms.  I think it is clear that the expression “hardly credible” was not a finding of credibility against the applicant.  It should be taken as a finding that the applicant would be aware of the basic terms related to his line of work.  The strongly negative credibility finding can be seen in the last four lines set out above.

53                  Counsel for the applicant submitted that this confusion in terminology was quite clearly caused by interpreting errors.

54                  Counsel referred me to pp 18–22 of the transcript of the first stage of the hearing by the Tribunal as reconstituted.  [Exhibit A2 pp 22-26].

55                  On reading and re-reading those pages, I formed the impression that there was a distinct possibility that the interpreter was having difficulty translating the legal terms used by the applicant in the Farsi language into the equivalent legal terms in English.  The subject was re-visited, in the context of the 1997 incident, at p 29 of the same transcript.  It was again re‑visited (this time in relation to the 1991 incident) at the resumption of the hearing.

56                  I think that a fair assessment of all those pieces of evidence is that the interpreter sufficiently conveyed to the Tribunal the effect of what had taken place i.e. that there had been a finding of wrongdoing, no conviction and the imposition of a fine (“…he was acquitted and sentenced to a very light term…”, “He had a lot of cases, a lot of offences, but the judge ignored all the offences and gave him a very light sentence.”, “He was only fined a very small amount of money and then he was acquitted, forgiven.”).

57                  At the resumed hearing the applicant himself raised the matter as something that he wished to explain.  That resulted in the following exchange:

“TRIBUNAL:  You mean he got no conviction, is that what you mean?  No conviction but a fine?  So he’s got no record?

THE APPLICANT:  (via Interpreter):  Yes, I can’t quite remember, it was nine or ten years ago but he didn’t get - he wasn’t sent to prison, he was fined – can’t quite remember.”

58                  The applicant had already explained at the earlier hearing (see p 22 of the transcript) that by “fine” he meant not only the payment of money but also the judge’s order. 

59                  Eventually a clear picture emerged of what the applicant said had occurred.  The problem is that the Tribunal relied, in part, on what it perceived to be the applicant’s confusion of legal terms in reaching the strongly negative credibility finding to which I have referred above.

60                  As I have mentioned, there is the possibility that the interpreter had not accurately interpreted the technical terms into the equivalent English technical terms.  However, this Court has to be satisfied about such a matter, not in terms of possibility, but in terms of probability i.e. more likely than not.

61                  If a possibility were sufficient,  I would have little hesitation in finding reviewable error.  The matter is clearly one of significance to the applicant’s claim.  But this Court has to be satisfied, on the balance of probabilities, that the interpretation was deficient.  I am not so satisfied, for the reasons which now follow.

62                  The applicant was assisted at the relevant times (there was telephonic breakdown at one stage, but not at this stage) by a migration agent who was fluent in Farsi.  The tapes of evidence were sent to that agent who, on 13 December 1999 [AB 102-104] sent a facsimile to the Tribunal setting out details of what he asserted were translation errors.  Several things need to be said about that facsimile.

63                  First, as the agent noted at the end of the facsimile, it was based on an examination merely of the first of two tapes.  But the evidence (see p 23 of the transcript) indicates that this included pp 18‑23 of the transcript.

64                  Secondly, the complaints descended to both particularity and to matters of a technical nature.  For example, the agent pointed out that the applicant had stated that he was an assistant prosecutor, but the translator had interpreted this variously as being ‘a member of the Tribunal and assistant Magistrate’.  I mention this because I was concerned that the agent may not have appreciated the other difficulties which I have referred to above, of translating concepts of findings of guilt, non‑conviction and the imposition of a fine from the Farsi language to the English language.

65                  I take into account the fact that the interpreter himself wrote to the Tribunal on 29 November 1999, [AB 100] pointing out that he had mistakenly interpreted the Iranian words “Dad Yar” as being “assistant to the Judge” when the correct English equivalent was “assistant to the public prosecutor”.

66                  It is, of course, possible that the interpreter might have been unaware (if it were the case) that he had mis‑translated the other technical terms.  However, I think that the interpreter’s letter at least shows that he had reviewed his interpreting work and had the professionalism to correct at least one point.

67                  In the end, I am left with a strong feeling of unease about the Tribunal’s assessment that the applicant was confused.  But this was a factual finding for which there was some evidence before the Tribunal.  In my opinion, there is not enough evidence before me to establish that, on a balance of probabilities, the impression of confusion was caused by interpretation which departed from the required level of competence.

68                  The next matter upon which the Tribunal relied for disbelieving the applicant’s evidence on this point, was the fact that he had provided various descriptions of the offences committed by the accused.  In written submissions, counsel for the applicant contended that the exchanges on this point between the Tribunal and the applicant were “fraught with interpreting difficulties”.  The exchanges can be found principally at pp 20‑21 of the transcript of the first stage of the proceedings before the Tribunal.  The applicant’s migration agent made no complaint, whether in his facsimile of 13 December 1999 or otherwise, of any mis‑translations in that regard.

69                  Furthermore, a reading of the transcript on this point does not indicate any difficulties of translation.  The applicant himself, (at p 21 of the transcript) states “I appreciate and thank you for allowing me to explain this to you”.

70                  Finally, it can be seen, a couple of pages later in the transcript, that the migration agent interjected to complain about the description “Assistant Judge” being used instead of “Assistant Prosecutor”.

71                  If there had been any mis-translation shortly before, and after this, I think that the migration agent would have intervened.  The migration agent intervened more than once, when he saw fit.  I reject the applicant’s contention that on this aspect there were deficiencies in the translation.

72                  The applicant’s counsel submitted that the Tribunal erred in its assessment that over successive submissions, he had provided various descriptions of the offences committed by the accused.  This submission was part of the applicant’s submissions of actual bias (see par 10 of the applicant’s written submissions). 

73                  I do not think that this part of the applicant’s complaint of actual bias has been made out. In the Statutory Declaration Form the applicant said that the accused “…had abused his underlings”.  [AB 39].  His evidence before the First Tribunal [see AB 78] was that the charges against the colonel were for obtaining money from soldiers to let them finish their military service.  Of course, extracting bribes for remission of military service could well be described as abuse.

74                  However, when one examines the evidence of the hearing before the Tribunal (see for example, p 21 of the transcript), in my view, it was quite clearly open to the Tribunal to find that there had been embellishments by the applicant in relation to these charges.

75                  In my opinion, the applicant has fallen well short of proving any bias on the Tribunal’s part in that regard.

76                  The same applies, in my view, in relation to the applicant’s complaints of actual bias arising out of the Tribunal’s assessment, that the applicant had made inconsistent statements about whether it was he who was personally affronted by the Judge’s verdict and then the explanation that other affected people had complained.

77                  In my opinion, in this part of the submission of actual bias, the applicant was really seeking merits review. 

The 1997 incident

78                  As to interpreting errors in relation to the 1997 incident, the appellant’s counsel made a general complaint and some specific complaints.  The general complaint was that the interpreter had “evident problems throughout this part of the transcript, making unclear the narrative of the story.”  Some examples were given.  I have read the whole of the transcript of the initial and adjourned hearing before the Tribunal and I have re‑read the portions about which complaint is made in relation to this incident (and indeed, in relation to all of the incidents).

79                  The transcript shows that there were problems in the interpretation of the applicant’s evidence in relation to the 1997 incident.  But they were relatively minor problems, such as the interpreter having to ask the question twice.  The problems of communication can be seen to have been resolved by further questioning.  At one stage (see p 29 of the transcript) the Tribunal double-checked a detail of a date with the applicant and even invited the applicant’s migration agent to seek clarification.  So far as the general complaint of sub-standard interpretation is concerned in relation to the 1997 incident, in my view, the complaint is not made out.

80                  There was a specific complaint about a mis-translation of a word which the interpreter initially thought to be “wife”, but then thought was “bike” (see transcript pp 31 and 32).  The Tribunal, the applicant and the interpreter can be seen to have been at cross-purposes at that stage, but it seems reasonably clear that the applicant’s initial evidence had been about a refusal by the authorities to allow him to contact or talk to his family.  In my view, the matter was cleared up and in any event, it did not have a material bearing on the outcome of the hearing before the Tribunal.

81                  The complaint of sub-standard interpreting on this issue is not made out.

82                  In relation to actual bias with respect to the 1997 incident, the applicant submitted that there were two matters which pointed to a pre-judging of the issue.  The first was because the Tribunal had regard to prior inconsistent statements when dealing with the findings of the First Tribunal, when that Tribunal had accepted the applicant’s explanation for any alleged inconsistency (his complaint that the interpreting at the departmental interview had been poor).  The second, cumulative, matter was said to be the Tribunal’s incorrect finding in relation to inconsistency.

83                  The Tribunal, in its reasons, stated that the applicant’s claims about the 1997 incident had altered over various submissions.  The evidence bears that observation out.  The Statutory Declaration Form accompanying the applicant’s application for a Protection Visa, identified the file as relating to suspected money laundering by the Speaker of the Iranian Parliament.  The applicant’s description of the nature of the file did in fact change during the course of the various stages of the processing of his application.

84                  It was for the Tribunal to decide what, if anything, to make of such changes i.e. whether they were changes of substance or simply amplification, or the giving of more detail.  It was open to the Tribunal on the evidence to find, as it did, that the applicant had changed critical details.

85                  I accept the applicant’s complaint that the Tribunal got it wrong when (at p 14 of its Reasons) it stated that the applicant had failed to mention to the First Tribunal that he was warned not to tamper with the file.  At p 8 of the Reasons of the First Tribunal, it can be seen that the applicant had told the Tribunal that he was “…to keep his nose out of things.”  But this error in the fact-finding process by the Tribunal does not arise out of any interpreting errors, and, in my view, does not suggest a pre‑judging of the issues.  At worst, it amounts to an oversight.

86                  There was no error on the Tribunal’s part, in stating that, at the hearing before the First Tribunal the applicant had failed to mention that he had been abducted while riding his motorcycle.  The First Tribunal stated (at p 14 of its Reasons) that the applicant had made no mention of the motor bike incident at that hearing.

87                  It is true that the First Tribunal noted the applicant’s claim that the interpreting was poor at the departmental interview.  However, that circumstance would not preclude the Tribunal from having regard to any difference between the applicant’s statements at the departmental interview and to the First Tribunal.

88                  A fair reading of the Tribunal’s reasoning (at p 14 of its Reasons in particular), does not suggest actual bias on the Tribunal’s part.  The transcript of evidence in relation to the 1997 incident also points in the opposite direction to the applicant’s submissions.  I do not accept the applicant’s complaint that the manner in which  the Tribunal handled this issue disclosed any actual bias.

The magazine “Zan”

89                  The Statutory Declaration Form contained the following passages:

“I was so concerned about the deceit that I wrote a letter in which I pointed out the lies and the deceit to a magazine, Zane Rooz whose editor was Faeze Rafshanjani.

The letter was anonymously written, but I had put my address on the envelope.  Because of the address the authorities were able to trace authorship back to me.  The import of the letter was simply that the authorities were corrupt.

As a result of the publication of my letter Faeze Rafshanjani was suspended from editorship of the magazine for two consecutive issues.”

90                  As the Tribunal said in its Reasons (see p 14), there was much discussion about the name of the magazine to which the applicant claimed he had written.  The problem arose out of the fact that there were two publications.  One was a weekly magazine called “Zan‑e‑Ruz” which was aimed at women.  There was also a daily newspaper titled “Zan” (which means “woman” in Farsi).  Its publisher was Faezeh Rafshanjani, daughter of the former President of Iran.

91                  The evidence before the Tribunal was that the daily newspaper “Zan” was an outspoken publication and had been subjected to fines and temporary bans by the conservative Islamic Courts.

92                  The Tribunal rejected the applicant’s explanation that when he referred to the publication to which he sent his letter as “Zane Rooz” or “Zan-e-Ruz” he adopted what was a common description of the newspaper “Zan”, generally used by Iranians when referring to that newspaper.

93                  As part of his complaints of actual bias, the applicant submitted that the basis upon which the Tribunal found that the editor of “Zan” would not publish a letter such as that which the applicant claimed to have sent to it, showed actual bias.

94                  In my view, it is substantially clear why the Tribunal formed the view that the editor would not publish such a letter.  It did so by reference to information that “Zan” had been closed indefinitely by the Revolutionary Court merely for publishing a New Year’s greeting from the wife of the former Shah and a cartoon lampooning the unequal legal status of women.

95                  The Tribunal reasoned that if the magazine (it must have meant the newspaper) was closed down for that reason, it was reasonable to conclude that printing direct accusations of state terrorism, allegedly supported by information stolen from State Justice Department files would not fit (i.e. would go well beyond) the description “liberal” attributed to the publication and would lead to serious consequences for the publisher.

96                  In any event, this chain of reasoning on the Tribunal’s part does not, in my view, give any indication of actual bias by way of pre-judgment.

97                  In written submissions, the applicant initially supported this contention by submitting (see par 21) that the Tribunal had made findings critical of his credit in relation to the name of the magazine “Zan” without putting the matter to the applicant.  This, so it was submitted, meant that the only conclusion was that the Tribunal had pre-judged the issue.  At the hearing, counsel for the applicant withdrew this part of the submission (that the matter had not been put to the applicant), so one is left with a complaint of actual bias leading to adverse credibility findings for which there is, in my opinion, no substance.

Activities “sur place”

98                  It appears from the transcript of evidence before the Tribunal (see p 51) that the reason why the First Tribunal Decision was set aside by consent was because the hearing before the First Tribunal was adjourned at the point where the applicant had mentioned his activities sur place but the Tribunal failed to convene a further hearing for that evidence to be taken.

99                  The adjournment was on 26 April 1999 i.e. the applicant raised his sur place activities on or about that date.  As part of his complaint about actual bias, the applicant points to the following passage in the transcript:

“THE TRIBUNAL:  Yes, well it seems to me, all of the things you say about in Iran, seem to me, implausible.  Like, his story doesn’t add up and I find it really odd that you haven’t really disclosed you’ve been on the radio until today – yesterday, maybe.”

100               In written submissions, counsel for the applicant contended that it was “inappropriate” for the Tribunal to express its disbelief at the timing of this information at the beginning of the discussion of the issue, and that it was “disturbing” that the matter proceeded even though contact with the migration agent had been disconnected by power failure.

101               It was unfortunate that the Tribunal got it wrong about when the applicant had first raised the matter of his activities sur place.  But in my view, the events which followed showed that there was no pre-judgment on this issue.  What happened was that the hearing was adjourned so that the manager of the Persian radio station in Sydney could be called to give evidence.  He was called and the Tribunal found that the applicant had, as he claimed, conducted interviews on the radio.  In other words, the applicant was substantially believed about his participation in radio broadcasts.

102               It does appear that the matter proceeded for an undetermined time without there being contact with the migration agent.  But any prejudice in that regard was, in my view, resolved when contact was re-established and arrangements were made for Mr Mansoori to be called to give evidence at a later date. 

103               Then the applicant complained that at the re-convened hearing on 13 December 1999 the interpreter was not sworn and that the Tribunal questioned the applicant at length about the frequency of his contact with Mr Mansoori and other aspects of that contact.

104               Counsel for the applicant submitted that the manner of questioning of the applicant and Mr Mansoori on 13 December 1999 indicated a pre-judging of the issue.  Details of one matter were explored (the length of a poem submitted by the applicant) whereas evidence in relation to the likelihood of the Iranian authorities hearing the broadcast was not.

105               In relation to these complaints of alleged actual bias, I think that it is sufficient to point to the fact that the Tribunal found substantially in favour of the applicant in relation to his participation in Persian radio broadcasts in Sydney.

106               Finally, the applicant complained that pre-judgment could be inferred from the fact that there was no evidence upon which the Tribunal could make a finding about the likelihood of the Iranian authorities hearing the broadcasts.

107               There was evidence to suggest that the radio broadcasts were not national broadcasts.  At p 56 of the transcript of evidence before the Tribunal, the applicant states that the radio station was in Sydney.  At p 9 of the transcript of proceedings of 13 December 1999 the applicant stated that the programme could not be received at Port Hedland and was broadcast on an FM frequency of 90.1.

108               In my view, it was open to the Tribunal to infer, as it did, that the radio programme was “a local Sydney show”.  In my opinion, the complaint of actual bias has not been sustained in relation to this issue either.

Conclusion

109               A fair reading of the whole of the transcripts of both the hearing and the adjourned hearing before the Tribunal shows that there were problems of interpretation.  However, speaking in general terms, they were usually of the sort which one would expect to encounter even with the services of a very competent interpreter.  Also, they were generally followed-up and clarified.

110               I have dealt above with the specific complaints, but I thought it appropriate to consider the interpretation as a whole.  My overall impression is, that the standard of interpretation disclosed in the transcript was far higher than that encountered in cases such as Perera and Ismail.

111               In the present case, there was no evidence from a second interpreter identifying significant defects in the interpretation.  There was some fairly strong criticism from the applicant’s migration agent, both at the hearings and in his subsequent letter to the Tribunal.  The fact that the applicant had his migration agent present during almost all of the proceedings, and that the agent objected on several occasions to specific mis‑translations, has also assisted me in reaching the conclusion that this was not a case in which the interpretation fell short of the standard described in Perera and applied in the subsequent cases which I have mentioned above.  The factual circumstances were fairly complicated and, in some respects, rather bizarre.  I took that into account also when assessing generally the standard of interpretation.

112               For the foregoing reasons, the application will be dismissed with costs.

Associate:

Dated:              12 July 2000