FEDERAL COURT OF AUSTRALIA

Kheirollahpoor v Minister for Immigration and Multicultural Affairs [2000] FCA 1350

MIGRATION – application for protection visa – refugee sur place – political opinion – asserted fear of persecution based on activities in Australia – series of about fifteen interviews on foreign language radio programme – applicant made comments critical of the Iranian regime – in all but one of those programmes applicant identified himself only by first name and by reference to his detention at Port Hedland Detention Centre – in last programme applicant identified himself by giving his full name and by referring to his place of detention – Tribunal found that sole purpose of that broadcast was to create a pretext to invoke a well-founded fear of persecution if returned to Iran – Tribunal found further that Iranian authorities would take the same view and would not persecute the applicant – whether Tribunal erred in law – whether Tribunal further erred by failing to make material findings of fact – whether Tribunal obliged to make findings as to whether the final broadcast would have enabled the Iranian authorities to identify the applicant as having made the other political broadcasts critical of the Iranian authorities – whether Tribunal erred in failing to make findings about (a) whether such broadcasts constituted a political offence under Iranian law and (b) whether persecution under such law was persecution for political opinion.

Migration Act 1958 (Cth), ss 425, 430, 476(1)(g), 476(4)

Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 referred to

A v Minister for Immigration and Multicultural Affairs [2000] FCA 993 not followed

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 (25 June 1999) referred to

Nefiodova v Minister for Immigration and Multicultural Affairs [2000] FCA 179 (28 February 2000) referred to

Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 622 referred to

Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236 followed

Pat Tai Choi v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia Judgment No. 1556, 2 December 1998 followed

Tuli v Minister for Immigration and Multicultural Affairs [1999] FCA 271 followed

Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193 referred to Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166 cited

Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 cited

De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765 followed

Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576 followed

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 followed

KHEIROLLAHPOOR v MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

W 3 of 2000

CARR J

20 SEPTEMBER 2000

PERTH

THE COURT ORDERS THAT:

1.         The decision of the Refugee Review Tribunal dated 23 December 1999 be set aside.

2.         The matter be remitted to a differently-constituted Tribunal for reconsideration in accordance with law.

3.         The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application for review of a decision of the Refugee Review Tribunal, made on 23 December 1999, to affirm a decision of a delegate of the respondent not to grant the applicant a protection visa.

factual and procedural background

2                     Mr Farshid Kheirollahpoor is a citizen of Iran.  He was born on 27 October 1969 and is a qualified laboratory technician.  In or about September 1998, his father having paid a “smuggler” to arrange his exit, he left Iran and travelled via Pakistan, Malaysia and South Africa to Australia.  From Pakistan onwards the applicant used a “photo-substituted” New Zealand passport which (with his ticket and boarding pass) he flushed down the lavatory of the aircraft on which he arrived in Australia.  The applicant arrived in Australia on 20 November 1998 as an illegal immigrant and was placed in detention.  He has remained in detention since his arrival in Australia.

3                     On 25 November 1998 the applicant applied for a protection visa.  On 8 April 1999 a delegate of the respondent refused that application.  On review, on 4 June 1999 the Refugee Review Tribunal, differently-constituted to the Tribunal which eventually made the decision now under review, affirmed the delegate’s decision not to grant the applicant a protection visa.  The applicant sought review in this Court of that Tribunal’s decision.  On 14 October 1999, by consent, this Court ordered that the Tribunal’s decision of 4 June 1999 be set aside and that the matter be remitted to the Tribunal, differently-constituted, for reconsideration, with a direction that the Tribunal comply with the procedures provided for in s 424A of the Migration Act 1958 (Cth) (“the Act”).  Section 424A, in summary, requires the Tribunal to give an applicant particulars of any information which it considers would be the reason or part of the reason for affirming a decision under review, to ensure that, as far as is reasonably practicable, an applicant understands why the information is relevant to the review and to invite such applicant to comment on the information.  On 23 December 1999 the differently-constituted Tribunal again affirmed the decision of the respondent’s delegate.  On 6 January 2000 the applicant lodged an application in this Court for review of that decision.

the decision of the refugee review Tribunal

4                     In its reasons for decision the Tribunal outlined the relevant provisions of the Refugees Convention.  It referred to decisions of the High Court of Australia which set out the relevant law and no issue is taken about the accuracy with which this was done. 

5                     The Tribunal noted that it had before it the two files maintained by the respondent’s Department (“the Department”) relating to the applicant and the Tribunal’s file relating to the first Tribunal decision.

6                     The Tribunal also noted that there was the following evidence before it:

·          the record of an interview conducted with the applicant by a Department Inspector at Perth Airport on arrival in Australia;

·          his original application and a statutory declaration accompanying that application;

·          tapes of an interview conducted with the applicant by an officer of the Department on 13 January 1999;

·          a further statutory declaration by the applicant, dated 18 May 1999, submitted to the Tribunal as first constituted;

·          the tapes of a hearing before the Tribunal as first constituted on 25 May 1999;

·          a further unsigned statutory declaration submitted to the Tribunal by the applicant’s representative on 6 December 1999, which was subsequently signed by the applicant on 10 December 1999;

·          the tapes of the hearing before the Tribunal on 7 December 1999, including the evidence of the applicant and two witnesses, Mr Reza Massali, the Australian contact for Iran’s leading opposition group, Mujahideen-i-Khalq and Ms Bev Fabb, a Uniting Church Minister at Port Hedland;

·          what the Tribunal described as “a considerable body of documentary evidence” submitted by the applicant’s representative to the Tribunal.

7                     It would appear that the applicant’s claims to refugee status rest upon claims of having a well-founded fear of being persecuted for reasons of imputed or actual political opinion, although that is not entirely clear in relation to his main claim.

the main claim

8                     The applicant’s main claim arose out of an incident which the applicant claimed had occurred in the course of his employment as a laboratory technician at a hospital in Tehran in 1995.  The Tribunal found that the applicant had given varying accounts of what had happened.  At his airport interview the applicant said that one afternoon a urine sample had been given to him in great haste and he had been asked to analyse it quickly, as it belonged to someone very important.  He said that he had been told not to say anything about his analysis of the sample to anyone.  He duly analysed the sample which was taken away by the courier who had brought it in the first place.  The applicant said that one of his work friends, who had been gaining work experience while a student at the university, had somehow got hold of the remainder of the urine sample not used in the phial which the applicant had analysed, had tested it and had found traces of poison.  The applicant said that it had later been found that the urine sample which he had analysed was that of Seyed Ahmad Khomeini, the son of Ayatollah Khomeini.  An autopsy had been carried out on Seyed Ahmad Khomeini at the adjoining university hospital.  The authorities had been trying to suppress rumours that Seyed Ahmad Khomeini had died from something other than a heart attack.  The applicant claimed that the Iranian Secret Police had been purging all those medical personnel connected with the analysis of the urine sample.  Rumours had been circulating that the urine analysis revealed traces of poison and that a heart attack was not the real cause of death.  The applicant said that this had placed all the people involved in the laboratory at grave risk.  Doctors and some other medical personnel had disappeared and were presumed dead.  The applicant’s mother who had worked at the same hospital had taken her own life as a result.  The applicant said that he had feared for his life and had decided to leave the hospital to escape, as the Secret Police would not believe that while he had conducted the urine analysis he had not indicated his findings to anyone.  The applicant said that he had gone into hiding from 1995 until September 1998 when he had escaped from Iran to Pakistan.

the second claim – the “green” group

9                     The second of the applicant’s claims was that he was a member of a “green” group which protected mountains outside Tehran.  The applicant claimed that this green group may have been placed under suspicion because of his involvement with the urine sample.  Some of the other members of the group were arrested in 1995.  The applicant said that the government was suspicious of organisations of young people, because they might become involved in political activity.  The applicant claimed that his membership of this group, coupled with involvement with the urine sample, marked him as “anti-government”.

the third claim – banned books

10                  The third of the applicant’s claims was that, following his involvement with the urine sample, his dormitory at the hospital and his home were searched.  A newspaper article about Seyed Ahmad Khomeini was found, as well as some banned books.  The applicant stated that the discovery of banned books confirmed him as being anti-government.  The banned books related to Marxism and included books written by the leader of the Mujahideen-i-Khalq.  There was evidence before the Tribunal that if the Iranian authorities found anyone in possession of anything connecting them to the Mujahideen-i-Khalq, the person would be arrested and might be executed or put in gaol.

the fourth claim – refugee sur place

11                  The applicant claimed to be a refugee sur place by reason of some fifteen contacts initiated by him with a Persian language radio programme in Sydney since April 1999, three telephone conversations in July and September 1999 with a representative of a radio station in Canberra, a contact with a journalist from the “West Australian” newspaper and a contact with Amnesty International.  The applicant also claimed that a letter which included his name and the fact that he was an asylum seeker in Australia had been read out by a Ms Homa Hazrati, a member of the Society for Democracy and Human Rights in Iran, at a demonstration in Sydney on 20 July 1999.  Finally, as part of his claim to be a refugee sur place, the applicant relied upon the fact that he had made a plea to the respondent under s 417 of the Act (for the Minister to substitute a more favourable decision than the Tribunal’s decision) and that plea had been copied and sent to media outlets. 

12                  The applicant also claimed that he had prepared a fax to the Iranian Refugees Alliance in the United States of America and that the Port Hedland Detention Centre staff had mistakenly faxed it to another telephone number in the United States of America.  The fax included some documents in relation to his case which were highly confidential and contained information about high profile Iranian government people such as Seyed Ahmad Khomeini.

the Tribunal’s decision

13                  The Tribunal did not believe the applicant’s claim about his involvement with the urine sample of Seyed Ahmad Khomeini, or that he was of interest to the Iranian authorities.  It said that it did not accept that he was telling the truth about such involvement.  It gave various reasons for its disbelief.  They included inconsistency between the applicant’s claim and country information in relation to the date of death of Seyed Ahmad Khomeini and what the Tribunal considered to be changes in his evidence in significant respects over the course of the processing of his application.  The Tribunal found that the applicant had progressively enhanced his role in the testing of the urine sample over the course of the processing of his application.  Furthermore, the Tribunal found it implausible that the applicant would have remained in hiding in Iran for three years if he had genuinely been in fear for his life.  The Tribunal gave other reasons for disbelieving the applicant.  It also gave reasons for rejecting, as being not genuine, two documents produced by the applicant namely a notice addressed to him and a “letter of arrest” addressed to his father.  It concluded, on this aspect of his claims, in the following terms:

“I do not accept that these documents are genuine.  I consider that the Applicant has fabricated his account of these events to provide a basis for his application for refugee status.  I therefore do not accept that the Applicant has a well-founded fear of being persecuted if he returns to Iran by reason of anything he may have done in his capacity as a laboratory analyst at a hospital.”

14                  In relation to the matter of the “green” group, the Tribunal stated that it considered that the applicant’s latest claims in relation to that group represented another example of his altering his evidence in a way that he considered would advantage him.  It gave its reasons for that inference, including the fact that it was not until his third statutory declaration that the applicant had suggested that the “green” group had some links with the Mujahideen-i-Khalq.  The Tribunal concluded its findings in relation to the “green” group as follows:

“I prefer the Applicant’s original evidence that the members of the ‘green’ group had not had problems with the authorities until he supposedly attracted the attention of the authorities through his involvement in the analysis of the sample of Seyed Ahmad Khomeini’s urine.  Since for reasons given above I do not accept that the Applicant was of interest to the authorities as a result of his supposed involvement in the analysis of the urine sample, it follows that I do not accept that members of the ‘green’ group were arrested in the month of Farvardin in the year 1374 in the Iranian calendar (that is, around April 1995).  Having regard to the Applicant’s evidence that the members of the ‘green’ group had not encountered problems before this I do not accept that they were suspected of anti-government activity merely because they were a mountaineering group.  I do not accept that the Applicant has a well-founded fear of being persecuted by reason of his membership of the ‘green’ group.”

15                  As to the applicant’s claim that the police had found banned books at his dormitory and home the Tribunal said this:

“I consider that this is part of the account which the Applicant has fabricated to support his application for a protection visa.  I do not accept that the Applicant or his brother-in-law were in possession of a copy of the article by Seyed Ahmad Khomeini, books by Massoud Rajavi, the leader of the Mujahideen-i-Khalq, books about Marxism, banned books of poetry or other books which are banned in Iran.  I do not accept, therefore, that the Applicant has a well-founded fear of being persecuted by reason of his possession of such banned literature.”

16                  In relation to the applicant’s claim to be a refugee sur place, the Tribunal elected to follow the decision of Somaghi v Minister for Immigration, Local Government and Ethnic Affairs (1991) 31 FCR 100 and distinguished the decision of Lee J in Mohammed v Minister for Immigration and Multicultural Affairs [1999] FCA 868 which was under appeal, with judgment reserved, when the Tribunal gave its decision.

17                  The Tribunal had earlier in its reasons refused to accept that a letter which included the applicant’s name and the fact that he was an asylum seeker in Australia had been read out at the demonstration in Sydney on 20 July 1999.  As to a letter which the applicant and other detainees had written to the Society for Democracy and Human Rights in Iran and a letter dated 16 July 1999 which the chairperson of that Society had written to the Minister urging him to exercise his discretion under s 417 of the Migration Act, the Tribunal noted that it appeared that the latter letter had been copied to various media outlets.  However, the Tribunal said that there was nothing in the evidence before it to suggest that this letter was published in a way that could have come to the attention of the Iranian authorities.  In relation to the three radio interviews which the applicant gave to a Canberra-based journalist, the Tribunal had been provided with transcripts of those interviews and noted that none contained material identifying the applicant.

18                  As to the misdirected fax the Tribunal said:

“There is no evidence before me that would suggest that the fax has fallen into the hands of the Iranian authorities and, as I put to the Applicant in the course of the hearing before me, I consider that this possibility is far-fetched, having regard to the fact that the fax was apparently sent to the USA, not Iran.  I do not accept that the Applicant has a well-founded fear of being persecuted by reason of these documents having gone astray.”

the grounds of review

19                  The applicant conceded that he was not in a position to challenge the Tribunal’s rejection of his primary claims i.e. those which were based on the events which he claimed had occurred in Iran.  The focus of the application for review was the manner in which the Tribunal had dealt with his claim to be a refugee sur place.  There were five grounds of review.  In summary they were that:

(a)        there was no evidence or other material to justify the making of the decision;

(b)        procedures that were required by the Act or Migration Regulations to be observed were not observed;

(c)        the decision involved an error of law, being an error involving an incorrect understanding of the law relating to refugees sur place;

(d)        the Tribunal failed to observe the procedures required by s 430 of the Act in that it failed to set out its findings on material questions of fact in relation to certain matters; and

(e)        the Tribunal's decision was induced or affected by actual bias.

the respective contentions and my reasoning

(a)        no evidence or other material

20                  Ground (a) is in precisely the same terms as the ground of review provided by s 476(1)(g) of the Act.  That ground is qualified by s 476(4) which provides as follows:

“(4)     The ground specified in paragraph 1(g) is not to be taken to have been made out unless:

            (a)        the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

            (b)        the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

21                  The applicant relied upon s 476(4)(b) i.e. that the Tribunal based its decision on the existence of a particular fact, and that fact did not exist. 

22                  The applicant’s claim to refugee sur place status was based principally on two incidents during which the applicant claimed that his full name, and the fact that he was an asylum seeker and critic of the Iranian government were revealed publicly.  One such incident was during the course of a radio broadcast on 20 or 21 July 1999.  In respect of that incident, the Tribunal found that the applicant did not make the telephone call to the radio station in order to demonstrate his solidarity with the students in Iran (as he had claimed), but did so solely for the purpose of creating a pretext to invoke a well-founded fear of persecution if he returned to Iran.  That aspect of the Tribunal’s reasoning is the subject of ground (c), which I consider below.

23                  The second incident arose out of the Letter (referred to above) which had been signed by the applicant and four other Port Hedland detainees and sent to the Society for Democracy and Human Rights in Iran (in Australia) at some time between 23 June 1999 and 20 July 1999 (“the Letter”).  The Letter was highly critical of the Iranian authorities and included the information that its signatories were seeking asylum in Australia.  The applicant told the Tribunal that the Letter had been read out, at a demonstration in Sydney on 20 July 1999, by a Ms Homa Hazrati, a member of the Society.  His legal representative also produced to the Tribunal a letter, dated 3 December 1999, from Ms Hazrati stating that she had heard the applicant’s message of support for the demonstration in July 1999 broadcast on the Persian language radio programme.  Ms Hazrati’s letter did not state that she had read out the Letter at the demonstration.  The Tribunal noted that the suggestion that she had done so appeared to have been derived from the applicant himself.  It reasoned that as Ms Hazrati was an Immigration Consultant, she would be well aware of the confidentiality attaching to the refugee decision-making process and would not have named the applicant and other asylum seekers at a public demonstration, thus potentially endangering not only them but their families in Iran.  The Tribunal then found as follows:

“Having regard to the view I have formed of the Applicant’s credibility, and the fact that he was not in any event present at the demonstration in Sydney and therefore does not have first hand knowledge of the events he describes, I do not accept that a letter that included his name and the fact that he was an asylum seeker in Australia was read out at the demonstration in Sydney in July 1999.”  [Emphasis added]

24                  At the hearing in this Court, an affidavit sworn by Ms Hazrati was admitted into evidence without objection as to its admissibility or dispute as to its contents. 

25                  In summary, in her affidavit Ms Hazrati swore that she had attended a demonstration in Sydney on 20 July 1999 during which a Dr A Salek, chairperson of the Society for Democracy and Human Rights in Iran had read out the Letter in full, including the name of the applicant.

26                  The applicant contended that the Tribunal’s decision was based on a finding of fact that the Letter had not been read out at the demonstration in Sydney on 20 July 1999 when in fact it had been.  The applicant submitted that if the Tribunal had found correctly in this respect, it would have been much more difficult for it to have found that the applicant’s identity had been disclosed by him for the sole purpose of prompting his claim for a protection visa.  The relevant fact was, so it was put, “an essential fact”.

27                  The respondent responded to these submissions with several alternative arguments.  First, the respondent contended that the passage in the Tribunal's reasons to which I have given emphasis above was a conclusion based upon other facts and conclusions rather than a “particular fact”.  Those other relevant findings or conclusions previously made were said to be contained in its reasoning which I have summarised above.

28                  I reject this argument.  In my view, the Tribunal found as a fact that the Letter was not read out at the demonstration in Sydney in July 1999.  I think that that is clear from the passage in bold type above. 

29                  Next the respondent submitted that s 476(4)(b) does not apply to findings of non-existent fact.  The Tribunal had made, so it was put, a finding as to a non-existent fact, namely that the Letter was not read out at the demonstration in Sydney.  The respondent relied upon the decision of Katz J in A v Minister for Immigration and Multicultural Affairs [2000] FCA 993 at para 27.

30                 In Applicant A, the relevant fact was taken to be a finding that businessmen in the Democratic Republic of the Congo did not face treatment such as arrest, imprisonment or detention as the State acted to claim their assets.  Katz J referred to a decision of a Full Court of this Court, Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 (25 June 1999), a decision of Hely J in Nefiodova v Minister for Immigration and Multicultural Affairs [2000] FCA 179 (28 February 2000) and one of his Honour’s decisions, Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 622 where neither the Full Court nor Hely J nor Katz J had found it necessary to decide the question whether s 476(1)(g) applied to findings of the non-existence of facts.  His Honour then said this:

“27.  In the present case, I conclude that par 476(1)(g) of the Act does not apply to findings of the non-existence of facts.  In order for the paragraph so to apply, it would be necessary to give an extremely strained construction to the language actually used in it (as well as to the language actually used in both limbs of subs 476(4) of the Act).  Furthermore, there appears to be no reason of policy justifying the giving of such a strained construction to the provision.  The giving of that construction to the provision would appear to amount to a departure from the longstanding distinction made in the law (including in administrative law) between finding a fact to exist when there is no evidence that that fact does exist (which is an error of law) and not finding a fact to exist when there is some evidence that that fact does exist (which is an error of fact only).  Such a strained construction of the provision would thus involve this Court in an intrusion into the merits of the administrative decisions under review by it under the Act.”

31                  The applicant pointed out that Katz J’s decision made no reference to a decision of a Full Court of this Court in Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236.  In Guden the Full Court found in favour of the appellant, in reliance upon s 471(g) when read with s 476(4)(b), on an argument which proceeded on a basis which was not put in the same way to the primary judge.  The Full Court found that two factual matters fell within the category of matters covered by those sub-paragraphs.  The Tribunal had rejected the appellant’s claim to be an office holder in a political party on the basis that this claim was not made in his initial submissions to the Department and thus it was “… not credible that such information would have been overlooked in setting out the basis of the claim to be a refugee.”  The Full Court reasoned, relevantly, as follows (at para 17):

“Thus, the fact which did not exist was the fact that the appellant was required to set out, in effect, the whole of his case which bore upon the issue of his political persecution.”

32                  With all due respect to the Full Court, I find this part of its reasoning difficult to understand.  Whether an understanding by the Tribunal (if indeed that was the Tribunal’s understanding) that an applicant, in order to be found credible, should have made a particular claim in his initial application or submission does not readily appear to be a decision based “on the existence of a particular fact”. 

33                  In any event, in terms of whether this was a finding of the existence of a fact or a finding of “the non-existence of a fact”, this would appear to fall into the former category. 

34                  The second fact relied upon by the Full Court fell into the latter category.  The Tribunal had found that the appellant had not claimed, in his initial submission, to be an office holder in the political party in question.  The Full Court said, at para 20:

“That fact did not exist because the claim to be Vice-President of the Antalya branch of HADEP had been clearly stated.”

35                  However, the second matter (whether Mr Guden had made the relevant claim in his initial submission) was clearly a matter of fact.  The Tribunal found, contrary to all of the relevant evidence, that that fact did not exist. 

36                 The respondent submitted that the Full Court in Guden had not considered the question, considered by Katz J in Applicant A, whether the finding that something had not happened could be “the existence of a particular fact” within s 476(4)(b).

37                 Nevertheless, sitting at first instance, I consider that I am bound by how the Full Court in Guden dealt with this particular point.  The fact that the Full Court assumed that the finding of the non-existence of a fact fell within s 476(4)(b) and relied upon that sub-paragraph as the basis for setting aside the decision at first instance in that case, requires me to take an approach consistent with that decision in this matter i.e. not to follow Katz J in Applicant A who specifically held to the contrary (but without Guden having been cited to him).

38                  But I consider that in this matter the Tribunal did not make a finding about “the non-existence of a fact”.  The particular question of fact was whether the Letter was read out.  That proposition, as Mr H N H Christie, counsel for the applicant, pointed out can be put both positively and negatively to mean exactly the same thing.  The Tribunal found as a particular fact that the Letter had not been read out, whereas in fact it is common ground that the Letter was read out.

39                  The respondent submitted that Ms Hazrati’s affidavit showed that it was not she but Dr Salek who read the Letter out in full at the Sydney demonstration.  Thus the Tribunal’s finding that she had not read out the Letter was correct.  I do not accept that submission.  The Tribunal’s finding of fact was to the effect that it did not accept that a letter which included his name and the fact that he was an asylum seeker in Australia was read out at the demonstration in Sydney in July 1999.  That is, the finding was not in terms of the particular person who read out the Letter, but that it was not read out either at all or in a manner which identified him.

40                  Next the respondent submitted that even if the applicant had established that the Tribunal had based its decision on the existence of a particular fact and that fact did not exist, this was only a precondition or “gateway” to the application of the ground contained in s 476(1)(g).  An applicant, so the respondent submitted, must still establish that there was no evidence or other material to justify the making of the decision not to grant a protection visa.  This point does not appear to have been put to the Full Court in Guden, but I think that the respondent’s submission correctly states the law. 

41                  In Pat Tai Choi v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia Judgment No. 1556, 2 December 1998, Lindgren J (at 9) held that paragraph (b) of sub 476(4) was a “gateway” through which an applicant must pass before it is permissible for the Court to proceed to hold that ground (g) of s 476(1) was established.  I followed that decision in Tuli v Minister for Immigration and Multicultural Affairs [1999] FCA 271.  In those two cases Lindgren J and I followed the unanimous judgment of a Full Court of this Court in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 where the relevantly identical provisions in s 5(1)(h) and s 5(3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) were applied.

42                  Applying that rule to the present case I accept the respondent’s submission that it could not be said that there was no evidence or other material to justify the Tribunal's decision to affirm the decision not to grant a protection visa to the applicant.  The Tribunal disbelieved the applicant and particularly in relation to his principal claim.  It is true that the Tribunal made a mistake of fact about whether the Letter had been read out in full (i.e. including the applicant’s name) at the Sydney demonstration on 20 July 1998.  Given the Tribunal’s assessment that the applicant was not of interest to the Iranian authorities as a person having anti-government views, it was, I think, open to it to find that even if the Iranian authorities became aware of the broadcast in which he gave his personal particulars, they would form the view that that was done for the sole purpose of improving his chances of gaining permanent residence in Australia and that the applicant did not have a well-founded fear of being persecuted for taking that course.  Whether the Tribunal correctly applied the law relating to refugees sur place is another matter, to which I turn below when considering ground (c).  But on the authorities relating to the “no evidence” ground, in my view, the fact that the Tribunal made a factual mistake does not give rise to reviewable error in this matter.

(b)        failure to comply with S 425(1)

43                  Section 425(1) of the Act provides as follows:

“(1)  The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.”

44                  The applicant complained that the Tribunal had, at the hearing simply asked him a number of questions to which he responded, but had “… refused to permit him to give his evidence or present his arguments at that hearing or at a further hearing, despite specific requests to do so from both the applicant and his advisor”. 

45                  A transcript of the hearing before the Tribunal formed part of the evidence before me.  It shows that the hearing before the Tribunal started at 11.00 am and concluded at 3.26 pm.  It does not appear from the evidence whether there was a break, whether for a meal or otherwise.  The transcript of evidence runs to 43 pages.  Pages 11-43 (inclusive) contain oral evidence given by the applicant to the Tribunal.  It is true that much of that evidence was in response to questions from the Tribunal.  From page 41 onwards it appears that the Tribunal formed the impression that the applicant was seeking to revisit matters that had already been put either at his initial interview or in statutory declarations, or in subsequent interviews or at the hearing before the Tribunal as originally constituted.  The applicant told the Tribunal that he wanted to talk about matters relating to his case.  The applicant was legally represented.  The Tribunal asked the applicant to provide it (through his legal representative), with a proper statement of any new matters which he wanted to raise.  The Tribunal then adjourned.  Before adjourning the Tribunal said this to the applicant:

“I will then consider on the basis of that statement whether there is a need for a further hearing with you.”

46                  The next day, 8 December 1999, the Tribunal gave the applicant a notice under s 424A of the Act and informed him (and his legal adviser) that any statement which he wished to provide to the Tribunal should be received at the Tribunal within the time limit for the response to the s 424A notice i.e. by 15 December 1999.  The applicant’s legal representative, on 10 December 1999 sent an 8 page letter to the Tribunal.  That letter did not include any statement from the applicant outlining any evidence which he wished to give to the Tribunal which he had not already had the opportunity to provide.  In that letter the applicant’s legal representative asserted that the applicant was entitled to address the Tribunal on any, and in fact all, of the evidence on which his claims for refugee status were based. 

47                  In its reasons, the Tribunal reviewed the contents of that letter in some detail and concluded as follows:

“I consider that the Applicant has been afforded an adequate opportunity to respond to the inconsistencies in his evidence arising from the airport interview.  Since I do not accept on the basis of the submission from the Applicant’s representative that there is evidence which the Applicant wishes to give to the Tribunal which he has not already had the opportunity to provide, I do not consider it appropriate to offer the Applicant the opportunity of a further hearing.”

48                  The legislative direction in s 425(1)(a) has been described, by a Full Court in Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193 at para 31 as a “central feature of a fair system of administrative merits review”.  Other cases have recognised the significance of the statutory right conferred by the section – see for example Budiyal v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 166 and Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 and in particular at paras 42-44 and 67-70.

49                  The question is one of degree, but in my view on the facts of this matter, the applicant was given a sufficient opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.  It was accepted by the respondent that s 425(1) imposed a continuing obligation on the Tribunal to give the applicant an opportunity to appear before it to give evidence and present arguments.  Section 425(1) was amended in 1998.  Previously the sub-section was expressed in terms which required the Tribunal to give the applicant an opportunity to appear before it and to give evidence.  The amended section speaks in terms of the Tribunal being obliged to invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues.  In De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765 at para 9 a Full Court of this Court decided that the 1998 amendment of s 425 did not change the purpose of the current section.  The Full Court held that that purpose was to ensure that the applicant has an opportunity to appear before the Tribunal to give evidence and present arguments.  In my view, given the long history of the matter, the fact that the applicant was legally represented at all material times, the extensive materials which the Tribunal had before it (as listed at paras 5 and 6 above) the content of the hearing which took place on 7 December 1999 and the further opportunity extended to the applicant at that hearing, the Tribunal complied with its obligations under s 425(1).

(c)        error of law

50                  The Tribunal, in its reasons for decision, rejected the applicant’s evidence about his motive in identifying himself by his full name when he spoke on the Persian language radio programme in Sydney on or about 20 July 1999.  It will be recalled that the applicant had spoken on that programme on about 14 previous occasions, but that on all other occasions he had simply used his first name.  On each occasion the applicant had spoken about his political opinions and beliefs and that he had had to flee Iran and was in the Port Hedland Detention Centre.  The Tribunal expressed its conclusions in the following terms:

“I do not accept that the Applicant felt the need to disclose his name and the fact that he was calling from Port Hedland Detention Centre in order to demonstrate his solidarity with the students in Iran.  Having regard to the view I have formed of the Applicant’s credibility, I consider that, as I put to him in the course of the hearing before me, he did so solely for the purpose of creating a pretext to invoke a well-founded fear of persecution if he returned to Iran.  Assuming that they are aware of the broadcast, I consider that the Iranian authorities will take the same view of the Applicant’s activities that I take, namely that the Applicant made the broadcast for the sole purpose of improving his chances of gaining permanent residence in Australia by making fraudulent claims for refugee status.  I do not accept that the Applicant has a well-founded fear of being persecuted by reason of his action in identifying himself in the radio broadcast in this fashion.”

51                  I accept the applicant’s submission that from this passage it is clear that the Tribunal, on the current state of the authorities, misunderstood the law relating to a claim to be a refugee sur place.  In Minister for Immigration and Multicultural Affairs v Mohammed [2000] FCA 576 a Full Court of this Court considered an approach taken by the Tribunal in that matter which I do not think can be differentiated from the approach taken by the Tribunal in this matter.  The Court, by a majority, held that it was in error for a Tribunal to regard the question whether the respondent was “acting solely out of desire to put himself in a position where he could claim to be endangered” as determinative of the question whether that person was a refugee sur place.  The Tribunal was obliged to address the central question of whether the applicant held a genuine fear that he would be persecuted and whether, if returned to his country of origin, there was a real risk that serious harm would befall him by acts of persecution within the meaning of the Convention.  The respondent made a formal submission that Mohammed was wrongly decided.  He also sought to distinguish Mohammed on the facts on the basis that in this matter the Tribunal had (as the delegate in Somaghi had done) gone further and made findings that the Iranian authorities would take much the same view of the applicant’s motives as taken by the Tribunal and he would not be persecuted by them if returned to that country.

52                  It is true that, in this case, the Tribunal made a finding of fact that the Iranian authorities would take the same view as it took about the applicant’s activities i.e. that he made the broadcast for the sole purpose of improving his chances of gaining permanent residence in Australia by making fraudulent claims for refugee status.  On that basis it refused to accept that the applicant had a well-founded fear of being persecuted.  But for the further error, to which I refer immediately below, it might have been possible to regard those findings as a basis for distinguishing the present matter from Mohammed.  But the third and fourth grounds overlap and should really be considered together, as the applicant contended.  Accordingly I now turn to that ground on the basis that grounds (c) and (d) are inextricably interlinked.

(d)        failure to set out findings on material questions of fact

53                  Section 430(1)(c) requires the Tribunal to prepare a written statement that sets out its findings on any material questions of fact.  In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 a Full Court constituted by five judges confirmed that failure to comply with this obligation is a ground for review under s 476(1)(a) of the Act i.e. that procedures that were required by the Act to be observed in connection with the making of the decision were not observed.

54                  The applicant submitted that when the Tribunal assumed that the Iranian authorities might be aware of the July 1999 radio broadcast, it was required to make findings of fact in relation to two further material questions.  The first was whether by reason of the single broadcast identifying the applicant, the Iranian authorities would have been able to identify his other political broadcasts criticising the Iranian government over a period of several months.  The applicant submitted that, as part of its task to consider whether the applicant would be persecuted by the Iranian authorities for a Convention reason, the Tribunal should have made a finding as to how the Iranian authorities would view all of the broadcasts as a whole and whether the applicant was at risk of persecution for his many broadcasts rather than just the one broadcast.  The Tribunal had evidence before it that radio interviews with foreign broadcasters were considered to be political offences under Iranian law.  This, so the applicant submitted was a further material question of fact upon which s 430 of the Act required the Tribunal to make findings and set them out in its reasons. 

55                  The respondent submitted that these two matters of the further radio broadcasts and the Iranian law were not material questions of fact, relying upon the distinction between material questions of fact and pieces of evidence explained by the Full Court in Singh particularly at paras 55 and 59.

56                  In my view, these two matters were material questions of fact upon which the Tribunal was obliged, by s 430(1)(c) to make and set out its findings.  In order to decide whether as a result of his actions in Australia the Iranian authorities would impute a political opinion to the applicant and would persecute him if he were returned to Iran, the Tribunal had to make findings of fact about whether the Iranian authorities would have been able to identify the applicant’s other political broadcasts criticising those authorities and how they would view those broadcasts as a whole.  It was also obliged, in my view, to make findings as to whether those broadcasts would amount to political offences under Iranian law, which of course is a matter of fact.

57                  Taking grounds (c) and (d) together, I consider that two errors of law are disclosed.  First, the Tribunal was asking itself the wrong question about the test for a refugee sur place.  That probably infected the further findings which it made and upon which the respondent relied.  In any event, it erred as a matter of law in failing to make the findings of material fact to which I have referred immediately above.

(e)        bias

58                  The applicant claimed that the Tribunal’s decision was induced or affected by actual bias, a ground of review provided by s 476(1)(f) of the Act.  He contended that the Tribunal had made up its mind in advance and was impervious to what the applicant might have had to say in support of his claim.  In written submissions the applicant referred to what was described as “a number of pointers” to the conclusion that the Tribunal had made up its mind before the hearing and was “just going through the motions”.

59                  Mr Christie conceded that none of the pointers on their own demonstrated bias, but they had to be considered together.

60                  I have considered cumulatively the matters raised in the applicant’s submissions in relation to this ground.  Actual bias will not be made out unless a reasonable fear is firmly established that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her – see Gaudron and McHugh JJ in Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70 at 100.  See also Sun v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 at 123 and 127. 

61                  Taken as a whole, the evidence upon which the applicant relies to show actual bias, in my view falls short of the mark.

Conclusion

62                  For the foregoing reasons I have found that the applicant has made out grounds (c) and (d) of his application.  Accordingly, the decision of the Tribunal will be set aside and the matter will be remitted to a differently-constituted Tribunal for re-hearing.

Associate:

Dated:              20 September 2000