FEDERAL COURT OF AUSTRALIA

W63 v Minister for Immigration & Multicultural Affairs [2001] FCA  890

MIGRATION – refugee – refusal of protection visa – Refugee Review Tribunal – alleged adversarial conduct of hearing by Tribunal – inquisitorial process – alleged pre-disposition of Tribunal to disbelieve Iran asylum seekers illegally in Australia – - irrelevance of national, racial or ethnic origin – irrelevance of illegal entry – approach to credibility – questionable identification of alleged inconsistencies in applicant’s case – whether no evidence ground applicable - whether Tribunal properly applied real chance test – whether Tribunal had duty to inquire further before rejecting documentary evidence

Migration Act 1958 (Cth) s 424, s 476

Refugee Convention Article 1A(2)

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 cited

Chand v Minister for Immigration and Ethnic Affairs (unrep, Full Court, 7/11/1997) cited

Attorney-General (NSW) v Quinn (1990) 170 CLR 1 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 cited

Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 cited

W63 v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W63 OF 2001

FRENCH J

11 JULY 2001

PERTH

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The Applicant is to 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

Introduction

1                     The applicant was born in Tehran in Iran on 5 May 1951.  He was married on 20 January 1982 and has two children. He is a truck driver by occupation.  His children, a son and daughter, are 16 and 12 years old respectively.  He and his family entered Australia as unauthorised boat arrivals from Iran though Indonesia in November 1999.  On 11 May 2000 they applied for Protection (Class XA) Visas which were refused.  They sought review of the decision by the Refugee Review Tribunal (“the Tribunal”) which, on 26 February 2001, affirmed the decision not to grant protection visas.  The applicant has now applied for an order of review of the decision of the Tribunal.

Overview of the Applicant’s Contentions

2                     The applicant’s claims in support of his application emerged from a series of statements made at various times in the process from first arrival in Australia to the hearing before the Tribunal.  His case at its highest appears from a submission on his behalf lodged with the Tribunal on 4 February 2001 by Dr Al Jabiri & Associates, evidently a migration agent providing what are described on the letterhead as “Human Rights Support and Migration Services”.   This must be read, however, together with an earlier statutory declaration which goes into more detail on some points. There was an interview recorded on tape by the departmental delegate who made the primary decision refusing a protection visa.  That interview was not transcribed nor was the tape provided at the hearing of this application. 

3                     The applicant was described in the written submission to the Tribunal as “a self-employed transport owner-operator for the past twenty years”.  He was also described as speaking “reasonable English” although an interpreter was used both in the Tribunal and at the hearing of the application before this Court.  After completing secondary schooling the applicant was sent by the government of the then Shah of Iran to Britain for training as an engineer and lived in Stoke-on-Trent for some three years.  However the Islamic revolution and the Iran-Iraq war put an end to his training and he returned to Iran where he acquired a truck and went into the transport business on his own account.  The service he provided, according to the submission, mainly involved taking imported goods from Iranian customs centres to their consignees in various cities around Iran and sometimes moving goods for those clients to other destinations in Iran.  By 1998 this work was being done with a heavy duty Volvo F12 semi-trailer unit. 

4                     In October 1998, the Iranian regime was at odds with the Taliban regime in neighbouring Afghanistan over the murder of six Iranian diplomats said to have been perpetrated by the Taliban in August 1998.  According to the submission, transport was needed to take arms and troops to the border areas for a military build up and to supply the Iranian backed enemies of the Taliban.  United Nations country reports were annexed to the submission, in particular extracts from the Guardian Newspaper of 16 September 1998 and the Economist of 12 September 1998.  The report in the Economist of 12 September 1998 stated, inter alia:

“In addition to the situation with its diplomats…dozens of Iranians – mostly lorry drivers – were also being held by the Taliban accused of transporting weapons to Afghan government forces.”

5                     According to the applicant’s submission he was stopped in his truck while returning from Mashhad to Tehran by a Pasdaran security unit and ordered to drive to a nearby military base of the Khorosan 77^th regiment.  There he was offered money to take a load of arms and ammunition to Afghanistan.  He was aware of reports circulating in the trucking community that the Taliban had raided some Iranian delivery trucks and killed the drivers before seizing the trucks and their cargo.  He did not want to be involved in anything that would lead to the killing of people.  He therefore declined.  As a result, it was claimed, he found himself peremptorily held in detention for a day then released to find his truck no longer there.  It was said to be one of 150 trucks commandeered by Iranian authorities that day for an arms delivery with or without the approval of the owners or drivers.  He said that he was told the truck would be returned to him.  He went to his industry association when it wasn’t returned.  However he was fobbed off both by them and by the military authorities at the base.  He was told the seizure of the lorries had been made by order of the Supreme Leader.  He lodged a complaint with the courts and was told to wait.  In the statutory declaration which he made  on 12 June 2000, the applicant said he had lodged his complaint with the court in Mashhad and was told to wait three months and that they would find his truck.  He complained to the President’s Office and was told again to wait for the decision of the court.  According to his earlier statutory declaration, after three months he went back to Mashhad and approached the court but was told that his truck could not be located and that this was by order of the Leader and that in effect his truck had been confiscated.  According to his statutory declaration, he went back to Tehran where he complained to the High Court.  He was told that he would have to wait a couple of months.  He returned in a couple of months and was told the same thing as in Mashhad.  The seizure of the truck had been ordered by the Islamic Leader and there was nothing they could do about it. 

6                     In the written submission it was said that he then went to the Supreme Court in Tehran but was treated badly by court security personnel.  In his statutory declaration he said he told the court that the truck was his only means of living and that he had to feed his children.  A security agent slapped him in the face and took away all the documents relating to his case, including registration papers.  Security agents dragged him from the courtroom.  The judge, who was a Mullah, said nothing.  After he was thrown out of the court he returned to the office of the President and, according to the submission, spoke strongly to a presidential office manager.  In his statutory declaration he said that he had become upset at the President’s Office and shouted that he had to make a living, that his truck was his only means of living and that nobody was giving him an explanation.  He had yelled – “what is the law in this country? Someone should answer to me”.  This time security officers took him into detention.  According to his statutory declaration, he was blindfolded and taken to a station.  He was held there for four days.  The submission went on to say that he was then taken before a Mullah in the judge’s seat and given a suspended sentence of eighty lashes and warned to behave.  He was released about ten days later, according to his statutory declaration.  He then staged what was described in the submission as a “one-man demonstration in central Tehran complete with a placard which implied criticism of the regime”.  The placard was described in his statutory declaration as “a large sign” that said “the Government has taken my truck and does not return it to me.  I don’t have any means of living so please give me some money”.  He said in his statutory declaration that he went to the Iman Khomeini Square and held up the sign and begged for money.  From his appearance he was not a vagrant so no one actually gave him money.  He said he was demonstrating for about thirty minutes before a car arrived with security agents.  They started beating him in front of other people.  They dragged him into the car and forced him to kneel head down while still receiving punches and kicks.  He said he was then taken to Evin Prison where he was held for ten days.  During this time, according to his statutory declaration, he was kept in a single cell.  Nobody spoke to him for five days.  After five days he was taken to another room for interrogation and was tortured for the next five days.  He said he was blindfolded throughout.  There was a bar on the ceiling.  He was hung by his wrists from the bar so that only his toes were barely touching the floor.  The second torture involved the use of rings on the floor to fix his feet to it.  His hands were tied behind his back and he was pushed forward until his head rested against the wall.  He was held in these positions for two or three hours.  During this time, he said, he was abused and humiliated.  At other times he was kicked and punched.  This was described in the written submission to the Tribunal as “persecutory treatment with various types of torture”.

7                     According to his submission and his declaration, the applicant was then taken to a Revolutionary Court.  He was told that he had insulted the Leader and Islam and that he would be tried in one month.  His family had engaged a senior lawyer to represent him at the court but he could do little.  He was remanded for a month for sentencing and the Presiding Mullah indicated that he could expect to receive the eighty lashes imposed by the suspended sentence and a minimum of ten years imprisonment. 

8                     According to his declaration, the applicant’s brother-in-law offered to pay any guarantee necessary to allow for his bail while he was waiting for his trial.  He gave the court title deeds to his house as security for his release.  He was released upon presentation of the title documents and after signing an undertaking to attend the final hearing.  In the submission, it is said, that this is confirmed by the lawyer who represented him.  The lawyer  sent to the migration agent a fax through the applicant’s brother-in-law and alluded to the risk that he faced by sending that letter.  The Tribunal was asked not to publish the name of the lawyer in its record of decision and not to release the contents of the letter to any other persons without prior consent.  A copy of the letter was attached.  The letter from the lawyer was described as “unofficial translation of a fax from Iran received 2/2/2001”.   It then described it as being on the letterhead of a lawyer who was named and described as a “Senior Lawyer Registered with Ministry of Justice”.  The letter confirmed the description of the legal process to which the applicant had claimed to have been subjected in the Islamic Revolutionary Court and said that had he attended the court he would have been sentenced as an anti-revolution dissenter and would have received a harsh sentence which could have been imprisonment or execution.  He therefore had no other option but to flee Iran and was advised to leave the country with his family by a forged passport and to seek asylum.  The letter advised that if the applicant were sent back to Iran he would immediately be arrested and sent back to prison, then be taken before the court.  He would most certainly be sentenced to a very long term of imprisonment even if he could get a lawyer to represent him. 

9                     The submission continued that, on his release on bail, the applicant was able to make contact with a smuggler and acquire false Iraqi passports said to be still readily available in cities like Tehran and Qom, inaccurate country information reports to the contrary notwithstanding.  The smuggler, through bribery, would have obtained exit permits without undue trouble as Iran was keen to get rid of as many Iraqi refugees as it could.  In addition, there would have been no problems with the applicant’s name being on the Departures Black List as the names were falsified in the passports.  Photocopies of the passports which the applicant’s family were said to have used had been sent to the office of his migration agent by the applicant’s brother-in-law and were attached.  The family passed through departure procedures at Mehrabad Airport at Tehran on 1 November 1999.  About twenty days later, according to the submission, a security contingent arrived at the family home while the applicant’s brother-in-law was visiting.  The house was raided and thoroughly searched.  The visiting security officers demanded to know where the applicant was.  This happened in front of neighbours, seven of whom had written a joint note about what they described as “an aggravating and harsh” incident.  There was a document attached to the submission purportedly signed by seven persons and confirming this incident.  A translation of this document together with a copy of the original were attached to the submission.

The Tribunal’s Decision

10                  The Tribunal rejected substantial elements of the applicant’s evidence.  In particular, it did not accept that his truck was commandeered to transport arms and ammunitions to forces opposed to the Taliban in Afghanistan and not returned.  It did not accept that he pursued recovery of his truck through the courts as claimed, nor that he was assaulted by a security agent when he complained to the Supreme Court.  It did not accept that after he went to the President’s Office and protested he was arrested, detained and assaulted and given a suspended sentence of eighty strokes of the cane or lashes.  It rejected his contentions that he unsuccessfully tried to enlist the assistance of the media, that he made a scene and that he shouted anti-government slogans.  It did not accept that he took a placard to Imam Khomeini Square protesting about the taking and non return of his truck.  It rejected his evidence that he was taken to Evin Prison or that he was detained there and tortured.  It also rejected his contention that he was told by a judge of the Revolutionary Court or by a Mullah in the Prosecutor’s Office at Evin Prison that he would be tried in a month and would receive eighty strokes of the cane or lashes and a minimum of ten years imprisonment.  As a result it was not accepted that he was released on bail enabling him to leave the country with his wife and two children. 

11                  Flowing from the preceding findings, the Tribunal did not accept that the applicant and his family left Iran travelling on a false Iraqi passport.  There was no reason, it concluded, why they could not have obtained legal and valid passports.

12                  The Tribunal accepted that there was a real chance that Iranian authorities would conclude that the applicant had applied for asylum in Australia.  But the act of applying for asylum abroad is not of itself an offence in Iran according to advice the Tribunal received from the Department of Foreign Affairs and Trade.  The applicant was not a political person with a high profile.  He was only a truck driver.  The Tribunal did not accept that there was a real chance that if the applicant returned to Iran now or in the reasonably foreseeable future he would be persecuted by reason of having applied for asylum in Australia. 

The Application for Review

13                  An application for review of the Tribunal decision was filed on 7 March 2001 by the applicant in person.  The application set out three grounds which were not particularised.  The first was that there was no evidence or other material to justify the making of the decision.  The second was that the decision involved an error of law and the third was that the Tribunal’s decision was induced or affected by actual bias.  The applicant secured legal assistance and as a result a Minute of Proposed Substituted Application was prepared and substituted at the hearing for that which had been prepared by the applicant.  The grounds of the substituted application are:

“The Tribunal erred in law in that it applied the wrong test of proof to its satisfaction in determining whether the Applicant’s claims of past persecution had in fact occurred and of its obligation to test and determine the Applicant’s claims to have a well-founded fear of persecution if returned to Iran.

Particulars

(i)        The Tribunal proceeded on the basis that the Applicant as an Iranian asylum seeker who had entered Australia illegally was unlikely to be worthy of belief and the Applicant’s supporting material was also unlikely to be true if it considered there was any unlikelihood or inconsistency in the claims made by the applicant or between the applicant and the supporting material.

(ii)       The Tribunal failed to take into account the fact that it could be wrong in its conclusion and the risk to the Applicant if it were wrong.

(iii)      The Tribunal rejected material that included a letter from a person who purported to be a senior lawyer registered with the Ministry of Justice in Iran without making any further inquiries as to the truth of the material provided.”

The Hearing

14                  The hearing of this application was set down originally for 2 July 2001.  On 30 June, Mr Christie, the practitioner representing the applicant, wrote to the Court to advise that the applicant had instructed him that he did not wish him to appear on his behalf at the hearing or to present submissions on his behalf.  He had accordingly withdrawn his instructions to Mr Christie and wished to appear himself.  In the circumstances no written submissions or list of authorities was lodged on behalf of the applicant.

15                  As a matter of courtesy, Mr Christie attended at the hearing and withdrew by leave.  The matter was then adjourned to 9 July to enable the applicant time to prepare a statement of his contentions which could be read to the Court in relation to his case.  At the hearing the applicant made a statement but also relied upon the grounds set out in the Substituted Application which was substituted at that time.

16                  The statement read to the Court by the applicant was largely concerned with the conduct of the Tribunal and complained of apparent disinterest on the part of the Tribunal member in what he had to say and interruptions by the Tribunal member who would hold his hand up and prevent him from speaking further on a particular matter.  Broadly speaking, the applicant’s complaints lay within the bounds of the first ground set out in the substituted application.

17                  Evidence at the hearing comprised an affidavit exhibiting material before the Tribunal at its hearing but did not include tapes of the interview between the applicant and the primary decision-maker which were also before the Tribunal and considered by it.  An affidavit providing a partial transcription of the Tribunal proceedings was also filed.  After the completion of the hearing I requested and obtained from Mr Christie an affidavit exhibiting the tape of the Tribunal proceedings to which I have listened.

 Statutory Framework

18                  The grant of protection visas falls within the general statutory framework for the grant of visas for non-citizens.  These are dealt with in Division III of Part 2 of the Migration Act 1958 (Cth).  The Minister has general power under the Act to grant a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or to remain in Australia (s 29).  There are prescribed classes of visas under the Regulations as well as classes provided for specifically in the Act (s 31).  Criteria for visas of specified classes may be prescribed in the Regulations (s 31(3)).  Where an application is made for a visa it is to be considered by the Minister (s 47) and if satisfied that the criteria for the grant of a visa prescribed by the Act or Regulations have been met and that other conditions, which are not relevant for present purposes have been met, the Minister is to grant the visa.  If not so satisfied, the Minister is to refuse the grant (s 65).  Section 36 of the Act provides for the grant of protection visas.  It specifies as a criterion for a protection visa that the applicant be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (s 36(2)).  This criterion is replicated in Schedule 2 of the Migration Regulations which, pursuant to reg 2.03 sets out criteria for the grant of various classes of visa.  Item 785 of Schedule 2 deals with temporary protection visas and Item 866 with protection visas.  Both include as a criterion that:

“…the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.”

The primary obligation which qualifies as a protection obligation arises out of Article 33 of the Refugees Convention.  Under that Article the Contracting States undertake not to expel or return a refugee to the frontiers of territories in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.  The obligation which is otherwise known as the prohibition against refoulement has two important elements:

1.         It operates in respect of refugees.

2.         It prohibits their expulsion or return to the frontiers of territories where their lives or freedoms would be threatened for a Convention reason.

A refugee is defined in Article 1A(2) of the Convention as any person who:

“…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.”

19                  Part 7 of the Migration Act deals with review of protection visa decisions.  A decision to refuse to grant a protection visa is reviewable by the Refugee Review Tribunal (s 411(1)(c)).  Applications for review to the Refugee Review Tribunal are made under s 412 of the Act and, if a valid application is so made, the Tribunal must review the decision (s 414).  The Tribunal in carrying out its functions under the Act is required to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420).  In so doing it is not bound by “technicalities, legal forms or rules of evidence” and is required to act “…according to substantial justice and the merits of the case”.  Section 424 provides for the Tribunal to seek additional information thus:

“424(1)  In conducting the review, the Tribunal may get any information that it considers relevant.  However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.

      (2)  Without limiting subsection (1), the Tribunal may invite a person to give additional information.

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

If the Tribunal has particulars of any information it considers would be a reason or part of a reason for affirming the decision under review, it is required to give the applicant particulars of that information and invite the applicant to comment on it. 

20                  The Tribunal is required to 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 (s 425(1)).  This requirement does not apply in circumstances which are not relevant for present purposes.  The Tribunal is empowered under s 427 to, among other things, require the Secretary of the Department to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review and to give the Tribunal a report of that investigation (s 427(1)(d)). 

21                  Decisions of the Tribunal are reviewable by the Federal Court (s 475(1)(b)).  The grounds upon which such applications may be reviewed are set out in s 476 of the Act which in the parts relevant to the present application provide:

“476(1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

…

(b)       that the person who purported to make the decision did not have jurisdiction to make the decision;

…

(e)        that the decision involved an error of law, being an error involving an incorrect interruption of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

…

(f)        that the decision was induced or affected by fraud or by actual bias;

(g)       that there was no evidence or other material to justify the making of the decision.

     (2)  The following are not grounds upon which an application may be made under subsection (1):

(a)       that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)       that the decision involved an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power.

…

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

…

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

The Proceedings Before the Tribunal

22                  The applicant’s complaint about the conduct of proceedings by the Tribunal member was not formulated in terms of any ground of  review falling within s 476.  A transcript of the hearing before the Tribunal was in evidence.  That transcript indicates that the Tribunal began with an explanation of its workings and of the Convention definition of refugee.  The explanation was not transcribed.  The applicant was asked if he had any questions for the Tribunal. He did not.  Thereafter the hearing consisted largely of a series of questions put to the applicant by the Tribunal member.  Initially the questions were put in a non-challenging way drawing out aspects of the applicant’s claims.  Later in the course of the hearing the exchanges became more difficult.  The Tribunal member began putting propositions to the applicant, which were adverse to his case.  That was done as a matter of procedural fairness to give the applicant an opportunity to respond to matters that, from the Tribunal’s point of view, could have had an effect on his credibility.  The exchanges did, however, at times read as a debate between the Tribunal member and the applicant and the applicant may have perceived the process as evidencing hostility to his cause on the part of the Tribunal.

23                  The tapes of the Tribunal proceeding confirmed the impression conveyed by the transcript. In the opening explanation of the Tribunal’s functions, which was not transcribed however, the member did say to the applicant that he would be putting certain matters to him.  He explained that he would do that, not because he had made up his mind, but in order to give the applicant an opportunity to respond.  He also told the applicant that he would have the opportunity of putting to the Tribunal anything which he had not already put to the Department of Immigration and Multicultural Affairs.  At the end of the questioning session, and after his representative had addressed the Tribunal, the applicant was asked if there was anything further he wanted to say before the hearing was closed.  He replied that he had put all the facts and that he was leaving it to the hands of God.

24                  The representative’s address was, in substantial parts, almost incomprehensible.  It is questionable what, if any, benefit the applicant derived from the representative’s participation in the proceedings. 

25                  There was no evidence from the transcript or from the tapes of the Tribunal preventing the applicant from giving the answers he wanted to or of any interruption of the applicant.  Nothing in the way the proceeding was conducted could provide a basis for review of the Tribunal’s decision under s 476.

Error of Law – Approach to Credibility

26                  Absent counsel, there was no elaboration of the first particular of the legal error asserted in the ground of review.  The particular asserts, in effect, that the Tribunal took as its point of departure the proposition that “the applicant as an Iranian asylum seeker who has entered Australia illegally was unlikely to be worthy of belief”.  If such a principle had underpinned the Tribunal approach to its decision-making then arguably there would have been an error of law. 

27                  The determination whether a person has a well-founded fear of persecution for a Convention reason as set out in Article 1A(2) is not to be informed by generalisations about categories of persons based on national, ethnic or racial origin or on whether their entry to Australia is unlawful.  The Refugee Convention itself contemplates the possibility, which is the practical reality, that many of those seeking protection as refugees will have entered the country in which they seek such protection illegally.  This appears from Article 31 of the Refugees Convention which provides:

“Refugees unlawfully in the country of refuge

1.  The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

2.  The Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country.  The Contracting States shall allow such refugees a reasonable period and all the necessary facilities to obtain admission into another country.”

28                  In its reasons for decision the Tribunal accepted the proposition in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 that:

“…in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for…”

The Tribunal referred also to the qualification that this should not lead to “an uncritical acceptance of any and all allegations made by suppliants”.  The approach to findings of credit in Chand v Minister for Immigration and Ethnic Affairs, a decision of the Full Court of the Federal Court, (unrep 7/11/1997) was cited:

“Where there is conflicting evidence from different sources, questions of credit of witnesses may have to be resolved.  The RRT is also entitled to attribute greater weight to one piece of evidence as against another, and to act on its opinion that one version of the facts is more probable than another.”

There was no error of principle disclosed in the Tribunal’s setting out of propositions governing its approach to assessment of credibility, taken as they were from relevant case law.

29                  The Tribunal began its assessment of the applicant’s credit by referring to what it characterised as “significant” inconsistencies in his evidence.  These inconsistencies, identified by the Tribunal at pp 22 and 23 of its reasons, may be listed as follows:

1(i)       In his original application the applicant said he had been offered good money to deliver a load of guns and ammunition to General Ahmad Shah Massoud’s forces in Afghanistan.

 (ii)       At the hearing he said he had not been told where in Afghanistan they wanted him to take the load but that the ammunition was to be delivered to the opposition to the Taliban “Massoud or whatever”.

2(i)       In the statement accompanying his original application, the applicant said that when he had complained to the courts in Mashhad and Tehran he had been told that as the Islamic leader had ordered that his truck be confiscated there was nothing that the courts could do about it.

 (ii)       At the hearing before the Tribunal, the applicant said for the first time that the Taliban had taken the trucks and had not returned them or the cargo and they had killed many of the drivers as well.

3(i)       In the statement accompanying his original application, the applicant said he had been held in Evin for ten days.

 (ii)       Interviewed by the primary decision-maker, the applicant said his protest with the placard had taken place almost at the end of the fifth month in the Iranian calendar (about mid August 1999) and that he had been held in Evin Prison for about two months.

 (iii)      At the hearing he said he had only been in prison for ten days and that when he had been released on bail he had been given a date in a month’s time to appear before the Revolutionary Court.

4(i)       In his original application, the applicant said that after being detained in Evin Prison he was taken before a Revolutionary Court where the judge told him that they had a photograph of him taking part in a demonstration against the government, that he had insulted the leader and Islam, that he would be tried in one month and that he would receive eighty strokes of the cane and a minimum of ten years imprisonment.

 (ii)       Interviewed by the primary decision-maker, the applicant said he had been taken before the Revolutionary Court at the Evin complex where the judge had set a date for hearing.

 (iii)      At the hearing before the Tribunal, the applicant said he had not been taken before a Revolutionary Court but to the Prosecutor’s Office in Evin Prison where he had been given a date in a month’s time to appear before the Revolutionary Court.  It was a Mullah in the Prosecutor’s Office who had told him that he would face a minimum of ten years in prison.

30                  In addition to the above, the Tribunal referred to inconsistencies in the evidence which had been produced by the applicant’s representatives in corroboration of his account.  These were as follows:

1(i)       The letter purporting to be from the lawyer who acted for the applicant in obtaining his release on bail suggested that he had been arrested and sent to prison because he refused to co-operate with an order from the leadership of Iran to some trucking operators obliging them to transport military equipment to the eastern borders of Iran.

 (ii)       The applicant had never suggested that he was arrested and sent to prison for this reason.  He had said he was stopped on the way back to Tehran and taken to an army base where he was detained overnight and his truck was commandeered.

2(i)       The lawyer’s letter also said that after the applicant was accused of initiating a demonstration, confronting the Law Enforcement Forces and disobeying the Leader’s commands, he was taken before the Islamic Revolutionary Court of Tehran.

 (ii)       At the hearing the applicant was most emphatic that he had not been taken before the Revolutionary Court but to the Prosecutor’s Office in Evin Prison.

3(i)       The undated letter from the applicant’s brother-in-law faxed to his representatives on 3 February 2001 stated that he had gone to the applicant’s house on 23 November 1999 to check if everything was alright and that he found security officers there who questioned him about the applicant’s whereabouts.  The applicant’s brother-in-law also said in the letter that he had learnt from the neighbours that a week before the Intelligence Service had come to the house again and had asked them about the applicant’s whereabouts.

 (ii)       The letter purporting to be from seven of the applicant’s neighbours produced by the applicant’s representatives, referred by contrast to the visit of the security officers having taken place around 3 December 1999 when the applicant’s brother-in-law had coincidentally been visiting his sister’s house.

4(i)       Two of the four letters purporting to be from neighbours of the applicant, produced under cover of a letter dated 20 February 2001, indicated that security forces came to the applicant’s home and questioned his neighbours on 25 November 1999 and again on 2 December 1999.          The writers of both letters claimed to have seen the applicant’s brother-in-law at the applicant’s house on the latter date and that he was beaten or injured.

 (ii)       One of the two other letters from the neighbours said that some government officials came about three weeks after the applicant left, asked where he was and that a week after that the officials came to the applicant’s house and by chance his brother-in-law was there.  It made no reference to his being beaten or injured.

 (iii)      The fourth letter said only that in October/November 1999 the neighbour in question noticed the sudden journey of the applicant and his family and that about four weeks later some officials came to the applicant’s house and the applicant’s brother-in-law was there.  It makes no reference to the applicant’s brother-in-law having been beaten or injured.

The Tribunal was not prepared to give any weight to the letters having regard to the inconsistency between that from the lawyer, the applicant’s own evidence and the letters purporting to be from neighbours of the applicant and from the brother-in-law himself.

31                  In addition to the inconsistencies in the applicant’s evidence which were identified, the Tribunal referred to the implausibility, which I take to mean inherent improbability, of the proposition that he was asked to take arms and ammunition to the forces opposing the Taliban in Afghanistan in mid-September to mid-October 1998.  This finding of inherent improbability was reached on the basis of country information before the Tribunal that at the time the Taliban controlled the border between Afghanistan and Iran and had controlled it for some years.  The Iranian government had massed over 200,000 troops on the border and the only way in which supplies could have reached the opposition to the Taliban would have been through the Central Asian Republics. 

32                  The Tribunal referred to a news report in the Economist of September 1998 that dozens of Iranians, mainly truck drivers, had been imprisoned in Iran accused of carrying weapons to Afghan government forces that Iran supported against the Taliban.  As to this the Tribunal said:

“However the fact that the Taliban may have accused Iranian truck drivers of carrying weapons to the forces opposing them does not mean that they were doing so: it is far more likely that the truck drivers were simply engaged in the ordinary commerce which has taken place in the past, and continues to take place  (subject to intermittent closures of the border), between Iran and the Taliban-controlled part of Afghanistan.”

The Tribunal member considered it implausible that Iranian authorities could have contemplated sending 140 to 150 trucks carrying arms and ammunition across the border into that part of Afghanistan bordering on Iran.

33                  The Tribunal also referred to the inherent improbability of the applicant’s account of a threat being made to him of ten years imprisonment for his demonstration in Imam Khomeini Square, noting that most of those detained in connection with the student demonstrations in Tehran in 1999, for example, were released immediately after questioning or were only detained briefly.  Although the applicant’s representative had submitted that the student demonstrations were different because they had attracted international attention, the Tribunal noted that the Iranian government did treat those whom it regarded as the ringleaders harshly.  The Tribunal also relied upon information from a 1996 country profile prepared by the Department of Foreign Affairs and Trade that people are relatively free to grumble about the government to friends and strangers alike in Iran.  The Tribunal also referred to what it considered to be the inherent improbability that the applicant would have been released on bail if he were going to be sentenced to a minimum of ten years in prison.

34                  Corroboration offered by the applicant’s wife was dismissed having regard to the inconsistencies in the applicant’s evidence and its inherent improbabilities. 

35                  The Tribunal’s rejection of the applicant’s contention that he had fled Iran to escape persecution on account of his protest arising from the loss of his truck led to its rejection also of the contention that he and his wife and children had left Iran travelling on a false Iraqi passport.  The fact that false Iraqi passports were said, by the applicant’s representatives, to be readily available in Tehran was relied upon by the Tribunal to support an inference that the applicant’s brother-in-law could have procured the copy documents which were provided to the Tribunal in an attempt to provide corroboration of the applicant’s evidence.  There was nothing in the document produced to indicate that it was actually used by the applicant and his family to leave Iran.

36                  I have reservations about whether some of the matters identified as  “inconsistencies”,   were in truth such, whether they were “significant”, and whether they supported the sweeping judgment of want of credibility reached by the Tribunal.  The applicant’s statement that he was told his truck was to be taken to General Massoud’s forces in Afghanistan was not, in my opinion, inconsistent with his statement that he did not know the location to which it was to be taken.  Similarly, his statement that he was told that the truck had been commandeered or confiscated by order of the Islamic Leader in Iran was not inconsistent with the statement that it was seized by the Taliban in Afghanistan. Overall however, I cannot discern, underlying the Tribunal’s approach, any predisposition to disbelief which would amount to an error of law.  The Tribunal may have erred in fact, but if there were such an error it is not correctable by this Court.  As Brennan J said in Attorney-General (NSW) v Quinn (1990) 170 CLR 1 at 35-36:

“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository’s power.  If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error.  The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.”

That statement was approved by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.  The Court has no general power to rectify administrative injustice.  This was recently reinforced in the Full Court in Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at par [34]:

“…in the context of judicial review, the making of findings and the drawing of inferences in the absence of evidence is an error of law.  On the other hand, there is no error of law simply in making a wrong finding of fact.  Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to an error of law.  A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning.  Thus, at common law, want of logic is not synonymous with error of law.  So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place – Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6.  Sections 476(1)(g) and 476(4) appear to have been intended to give effect to such principles.”

I should add that the passage leaves open the proposition that there is a sub set of illogical reasoning which will constitute error of law, for example, cases in which inferences are drawn which are not open on the evidence. 

37                  If it were the case that the Tribunal had found inconsistencies to exist in the applicant’s testimony which were not, on proper examination, inconsistencies at all, then it might be argued that the Tribunal had based its decision on particular facts, namely the existence of inconsistencies in the material before it, which did not exist.  Such a finding, might in context, support a conclusion that there was no evidence before the Tribunal to justify its decision in the sense contemplated by s 476(1)(g) of the Act.  In my opinion, however, even allowing for differences of view about the inconsistencies asserted in relation to the destination of the goods, the seizure of the trucks by the Taliban and whether it was a court or a prosecutor’s office that the applicant attended in Tehran, the decision as to the credibility of the applicant was otherwise supportable by reference to a range of matters to an extent that precludes invocation of the “no evidence” ground.  A similar situation was considered by the Full Court in Al-Miahi.  The Court there pointed out that a decision may be based upon the existence of many particular facts and will be based upon the decision of each particular fact that is critical to the making of the decision at par [38]:

“A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that it is (sic) of more obvious immediate importance.” (emphasis added)

It would be sufficient in such a case to demonstrate that the relevant fact played a part in the process of the reasoning of the Tribunal in the sense that it was one without which the Tribunal would not have reached the conclusion that it did.  However it was not sufficient to say only that the link between the fact and the decision was tangible – the expression used by the primary judge who was reversed in that case – or that the assumed existence of the fact contributed significantly to the ultimate decision.  Plainly in the present case the findings about which I have reservations were not critical to the making of the decision.  There were parallel links supporting the Tribunal’s ultimate conclusion about the credibility of the applicant. The first ground of review is not made out.

Error of Law – What if the Tribunal were Wrong?

38                  The second particular in the substituted application asserts that the Tribunal failed to take into account that it could be wrong in its conclusion and the risks to the applicant if it were wrong.  The necessity for such an approach in an appropriate case arises from the exposition of the term “well-founded fear of persecution” in Article 1A of the Convention.  A fear is well-founded if there be a “real chance” of persecution for a Convention reason – Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J), 407 (Toohey J), 429 (McHugh J).   In exposition of that proposition the joint judgment in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 stated:

“A fear is “well-founded” when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate.  But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk for persecution.  A fear of persecution is not well-founded if it is merely assumed or if it is merely speculation.”

39                  It follows from this that a Tribunal may determine that it does not believe, for example on the balance of probabilities, that persecution for a Convention reason will eventuate if the applicant is returned to the home country.  Notwithstanding such a belief, it would be open to the Tribunal to conclude that there was a finite and non-trivial chance, albeit less than fifty per cent, of persecution upon return to the home country.  A real chance of persecution is consistent with absence of belief that persecution will occur.  So a Tribunal which believes that persecution will not occur if the applicant is returned may nevertheless be obliged to consider that there is a chance that it will occur. 

40                  The Tribunal in this case was alive to this principle and observed:

“If, however, the Tribunal has ‘no real doubt’ that the claimed events did not occur, it will not be necessary for it to consider the possibility that its findings might be wrong.”

It cited Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 at par 67 (Sackville J, North J agreeing).  The question in this case is whether or not the Tribunal reached that state of satisfaction about the facts which would preclude a conclusion that there was any real chance of persecution.  Findings of implausibility by themselves do not indicate that that state has been reached.  Nor do observations of inconsistency in testimony or evidentiary material.  But these are steps along the way to the Tribunal’s conclusions.  Having regard to the inconsistencies in the applicant’s evidence and the fact that it considered the applicant’s account to be implausible, the Tribunal said:

“…I do not consider that either the Applicant or his wife can be accepted as credible witnesses.”

On that basis the Tribunal went through each significant element of the applicant’s account asserting that it did not accept it.  Strictly speaking, the logic of this language does not constitute a positive finding of what occurred which would exclude the possibility that the applicant was telling the truth, even if not accepted as such by the Tribunal.  And on that strict interpretation of the Tribunal’s reasons it would be obliged to consider whether, notwithstanding its non-acceptance of his evidence, there were a real chance of persecution. 

41                  However, I am mindful of the stricture that the reasons of the Tribunal are not to be finely parsed with an eye keenly attuned to error.  The substance of the findings, in my opinion, amounts to a wholesale rejection of the applicant’s account reflecting a positive view that it was a concoction.  It is evident that the Tribunal was in no real doubt about the falsity of the applicant’s account of what occurred. Consistently with that view no alternative hypothesis was open.  Moreover I do not consider that the position would have been changed by the elimination of what I regard as questionable judgments by the Tribunal on certain of the alleged inconsistencies in the applicant’s evidence. On this basis, the second ground set out in the particulars is not made out.

Error of Law – Rejection of the Lawyer’s Letter

42                  The Tribunal is said to have wrongly rejected material from a  person purporting to be a senior lawyer registered with the Ministry of Justice in Iran without making any further inquiries as to the truth of the material provided.  The Tribunal considered the inconsistencies between the letter purporting to be from the lawyer and the applicant’s own evidence on a matter of some fundamental importance.  The lawyer’s letter suggested that the applicant had been arrested and sent to prison because he refused to co-operate with the order to transport military equipment to the eastern borders of Iran.  This was never the applicant’s case.  The other matter of whether the applicant appeared before a Revolutionary Court or a Prosecutor’s Office may be of lesser significance but was nevertheless a detail of which the lawyer would be expected to have been aware.  In the circumstances, the Tribunal was entitled to deal with the lawyer’s letter on its merits and to make the judgment it did about it having regard to the other evidence.  While the Tribunal does have an inquisitorial function and a discretion under s 424 to obtain additional information, there is nothing to suggest that it erred in law in the approach it took to that material.

Conclusion

43                  For the preceding reasons, none of the grounds of review are made out and the application will be dismissed with costs.

Associate:

Dated:              11 July 2001