FEDERAL COURT OF AUSTRALIA

W64/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 970

MIGRATION – refugee – protection visa – application for review of Refugee Review Tribunal decision – Iranian businessman claimed security forces pursuing him after  Mujahideen-e-Khalq materials found in his shop – Tribunal accepted that evidence of applicant and his wife consistent and some corroborating material – Tribunal considered three claimed events implausible then purported to “not accept” all elements of applicant’s case – whether Tribunal erred by failing to take into account claimed events in assessing the degree of risk of persecution facing the applicant if returned to Iran – whether Tribunal misinterpreted the meaning of “well-founded fear of persecution” – whether Tribunal erred by failing to take into account relevant material or failed to determine the correct question

Migration Act 1958 (Cth) ss 5, 13, 14, 36(2), 65, 189, 196, 430, 476(1)(b),(c) and (e)

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 applied

Abebe v Commonwealth of Australia (1999) 197 CLR 510 applied

Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 cited

Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7^th Cir. 1992) cited

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied

W64/01A v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W64 OF 2001

LEE J

8 AUGUST 2002

MELBOURNE (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal made 26 February 2001 be set aside and the matter remitted to the Tribunal for redetermination.

2.                  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

LEE J:

1                     The applicant applies under s 476 of the Migration Act 1958 (Cth)(“the Act”) for review of a decision made by the Refugee Review Tribunal (“the Tribunal”).  That decision affirmed a decision of a delegate of the respondent (“the Minister”), that the applicant not be granted a protection visa.

2                     The applicant, an Iranian businessman, then aged 39, left Iran in August 2000 and claims that he did so fearing that he would suffer persecution if he remained in Iran.  He left Iran with his wife and two children, a daughter aged 17 and a son aged 15.  On 1 November 2000 the applicant entered Australia’s “migration zone” and under ss 13 and 14 of the Act, not being the holder of a visa issued under the Act, he became an “unlawful non-citizen” upon entry.  Pursuant to ss 189 and 196 of the Act the applicant and his family were detained forthwith and thereafter remained in “immigration detention” at the Curtin detention centre near Derby in north-west Australia.  The applicant does not speak English and relied upon an interpreter to translate into Farsi the questions put to him by immigration officers and the Tribunal, and to translate into English his responses to those questions.

3                     The applicant was interviewed by an immigration officer on 9 November 2000 (the entry interview).  On 11 November 2000 the applicant applied for a protection visa.  The application was prepared with the assistance of a migration agent.  The applicant was interviewed by the Minister’s delegate on 17 November.  On 30 November the delegate decided that a protection visa not be granted to the applicant.  On 8 December the applicant applied to the Tribunal for review of the decision.  The Tribunal affirmed the Minister’s decision on 26 February 2001.

4                     Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused.  The only prescribed criterion relevant to this proceeding is that set out in s 36(2) of the Act.

5                     At material times, s 36(2) of the Act provided as follows:

“A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

6                     In s 5 of the Act, “Refugees Convention” and “Refugees Protocol” (together referred to hereafter as “the Convention”) are defined respectively as “the Convention relating to the Status of Refugees done at Geneva on 28 July 1951” and “the Protocol relating to the Status of Refugees done at New York on 31 January 1967”.  The phrase “protection obligations under the [Convention]” is not defined in the Act and is not a term used in the Convention.

7                     The Convention is a treaty pursuant to which the “Contracting States” agree to apply the provisions of the Convention to “refugees”.  Sub-Article 1(A) of the Convention provides the following definition of “refugee”:

“For the purposes of the present Convention, the term ‘refugee’ shall apply to any person who:…(2)…owing to 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;…”

Limitations upon the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F).  It was not contended that any of the foregoing sub-Articles applied to the applicant.

8                     As a Contracting State, Australia has accepted the obligations imposed upon it by international law by reason of accession to the treaty.  Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State.  All of those obligations could be said to come within a broad meaning of “protection obligations under the [Convention]” but, having regard to the purpose of s 36(2), the phrase as used in that subsection may be taken to refer to obligations imposed by the Convention that constitute direct, rather than indirect, obligations on a Contracting State to protect a refugee.

9                     As required by s 430 of the Act the Tribunal provided a written statement (“the Tribunal’s statement”) which set out findings on material questions of fact, the evidence or material relied upon, and the reasons of the Tribunal.  The Tribunal’s statement recorded the following summary of the applicant’s claims:

“The Applicant was interviewed shortly after his arrival in Australia because he did not have a passport.  He said that his Iranian passport had been confiscated by the Iranian authorities around 23 July 2000.  He said that he and his family had left Iran at the beginning of August, travelling to Pakistan and then to Jakarta using false Turkish passports.  When he was asked why he had left Iran the Applicant said that he had had a shop and one of his employees, a law student, had been involved in the demonstrations in Tehran in July 1999.  He said that once when he had been away from the shop for a week visiting his father the authorities had come to search the premises.  They had found documents and leaflets in the shop.  The student employee had run away and the authorities had arrested another employee.  The Applicant said that when he had returned to Iran the student employee had warned him not to go back to the shop because the leaflets which the authorities had confiscated were anti-government leaflets prepared by the students in the 1999 demonstrations.

The Applicant said that he had confirmed from neighbouring shops that security officers in plain clothes were waiting for him in front of his shop.  He said that he had gone to Bazar (the district in Tehran ‘where dealings take place’) and his colleagues had told him that the security forces were saying that he had been financing the student movement.  He said that his lawyer had advised  him to stay in hiding.  He said that he had been concerned that the authorities would find out his home address so he had gone to stay with relatives.  He said that after two weeks the authorities had come to his home and had searched it.  He said that the Ettelaat (the intelligence service) was the most powerful department in Iran so he could not fight them.  He said that his shop had been taken over and confiscated from mid-May and his home had been searched many times.  He said that he had had no alternative but to leave Iran.  His life had been in danger.

The Applicant also said that his wife had been in the hairdressing business and had therefore been harassed by the authorities.  He said that hairdressing was not considered an appropriate business in an Islamic country and the local council office had received a confidential letter from the Ettelaat and were in the process of closing the business down.  He said that his wife had been detained for a week and he had then had to pay to get her out.  He said that she had been abused and mistreated in detention:  they had left a tap dripping so she could not sleep and girls who had been lashed had been screaming in the cell next to hers.  The Applicant said that his brother had used the deed of either his house or shop as a surety to get her out.

The Applicant’s wife was also interviewed shortly after their arrival in Australia because she did not have a passport.  She said that she had had her own hairdressing salon from 1988 until 2000.  She confirmed the details of the Applicant’s claims set out above.  She said that he had gone into hiding and that the authorities had come to look for him at all hours of the day and night.  She said that the house had been searched on four to six occasions and she had been verbally abused and called a traitor.  They had said that she had helped somebody who was trying to bring down the Government.  She said that after two months they had confiscated the Applicant’s shop.

The Applicant’s wife said that for 12 years she had been pushed and pressured in her own business by the authorities.  She said that she had been questioned about why she had to colour women’s hair or help them with make-up in an Islamic country.  The Applicant’s wife said that during Ramadan one of her employees had left the premises smoking and wearing make-up and had been arrested, detained for 48 hours and lashed.  The [Applicant’s wife] said that her employee had telephoned her and had asked her to pay the fine but that when she had gone there to do so they had found out that she was the owner of the business and she had been detained for a week, given 50 lashes and fined 200,000 tomans.  The Applicant’s wife said that the Government had expected her to spy for them and to tell them where weddings and parties were going to be held, so they could raid them.  She said that her life would be in danger if she returned to Iran.

In a statement accompanying his original application the Applicant repeated the claims set out above.  He said that on 15 February 2000 he had gone to Bandar Anzali  where his parents had been staying. The shop had been raided on 19 February 2000.  He said that after speaking to the student employee, whose name was [deleted], to his friends and to his lawyer, he had gone into hiding in Manjil, Ardabil and Anzali, staying with friends and relatives.  He said that the employee who had been arrested when the authorities had raided the shop, whose name was [deleted], had given an undertaking to assist the Intelligence department.  The Intelligence department had taken control of the shop and had confiscated the goods and money.  The Applicant said that he had received a summons through his wife to attend the Intelligence department.

The Applicant said that in June 2000 his wife had been taken from her shop.  They had questioned her and had told her that they wanted to see if he would come to bail her out.  The Applicant said that his brother had bailed his wife out using the title of his wife’s shop.  He said that on 15 July 2000 the council had sealed his wife’s hairdressing shop.  She had learned from a friend that the council had received a letter from the Intelligence service requesting that her shop be sealed.  The Applicant said that he had thought that they could kidnap his children or do something to his family while he was in hiding.  He said that while he had been in hiding he had obtained a visa to go to South Korea where he had travelled before on business but he had been concerned that his name might be on the black-list.  He sad [sic] that he had a friend who knew someone who worked in the Passport Office and this friend had taken his passport there to see if he was listed.  The Applicant said that his name had come up on the computer and the person at the Passport Office had taken his passport.

The Applicant said that he had known then that he could not leave the country officially so he and his family had organised to leave illegally, passing over the border to Pakistan.  He said that they had paid $US7,000 each, $US3,000 in advance and a further $US4,000 when they were put on the boat to Australia in Indonesia.  The Applicant said that he believed that he would be imprisoned if he returned to Iran because he had been accused by the Intelligence department of involvement with his student employee who used his shop to store pamphlets that were against the Islamic regime.  The Intelligence department believed he had been involved in supporting this movement.

The Applicant and his wife were interviewed separately by the primary decision-maker on 17 November 2000 in connection with the Applicant’s application.  The primary decision-maker asked the Applicant if everything in his application was true and correct as far as he knew and believed.  The Applicant said that everything was true but there were certain things he wanted to expand upon in the course of the interview.  The Applicant said that he had not been the member of any political organisation in Iran.  He said that he and his family had left the country on 2 August 2000, 16 days after his passport had been taken away from him.  He said that they had travelled to Zahedan on the border with Pakistan by bus.  The journey had taken 24 hours.  He said that there were checkpoints but they only checked the driver’s paperwork, not the passengers’ documents.  The Applicant said that he and his family had not crossed the border at an official crossing:  they had made their way into Pakistan on foot, with the aid of smugglers.

The Applicant said that he had paid for the trip to Australia with the proceeds of the last shipment of goods sent to him for his shop.  He repeated the claims set out in the statement accompanying his original application.  He said that he had been told that people from the National Security had ransacked his shop and had found pamphlets or documents which were very important to them and to his student employee, [deleted].  He said that he had been told later on that the pamphlets were related to the student uprising.  The Applicant said that [deleted] had told him that he was involved in the Islamic organisation at university but that he was not involved in anything against the Government.  The Applicant said that after he had returned from Bandar Anzali he had continued living at his home in Tehran.  The primary decision-maker put to the Applicant that if the authorities had been seeking him they would have put his house under surveillance.  The Applicant said that he had used the rear entrance.

The Applicant said that when he had met with [deleted] he had learned that the pamphlets had been to do with the student demonstrations plus some political pamphlets of the Mujahideen-e-Khalq (Iran’s largest opposition group).  The Applicant said that [deleted] had told him that, in addition, he had used the fax machine in the shop to send these things overseas or internally within Iran.  He said that [deleted] had told him that he had only brought this stuff to the shop after the student demonstrations in July 1999 because he had been under surveillance.  The Applicant said that he did not know what had happened to [deleted] since their meeting:  nobody knew whether he had escaped from Iran or what had happened to him.

The Applicant said that he had next contacted his lawyer.  He said that his lawyer had advised him not to go to the shop and to leave the house and stay somewhere else.  The Applicant said that his lawyer had made some inquiries and had subsequently advised him that [deleted] had not been attending university for the past year.  He had been involved in politics for the last two years and was being looked for.  The lawyer had said that before [deleted] had come to work for the Applicant (two years previously) he had spent six months out of Iran, in Pakistan, because he had been being sought by the authorities.  The Applicant said that he did not know if [deleted] had managed to fool the authorities by disguising his appearance.  The primary decision-maker put to the Applicant that if the authorities had been looking for [deleted] they would have been able to identify him from documents such as a driver’s licence or his shenas nameh (personal identification booklet).  The Applicant agreed.

The Applicant said that his wife’s hairdressing salon had been closed due to  his situation.  Before they had closed the salon his wife had been detained for a week and many times they had passed messages saying that his wife should tell him not to put the lives of his children in danger and that they only wished to see him.  When they had detained his wife they had told her to tell him that they just wished to talk to him.  The Applicant said that his wife had been harassed before because of the nature of her business and the Islamic restrictions on dress.  However after March 2000 she had been harassed because they had not been able to put their hands on him.  After she had been detained for seven days she had been told to report to the police station every ten days.  He said that maybe they had thought that by releasing her they would be able to set a trap for him.

The Applicant said that the Ettelaat, National Security, was almost the same as SAVAK (the Shah's secret police) under the Shah.  He said that one of its buildings had been near his home which had increased his fear of this organisation.  The primary decision-maker put to the Applicant that this suggested that if they had wanted to find him they could have done so very easily.  The Applicant said that he had left his home the day after he had returned from Bandar Anzali.  He had lived every day in a different place, with relatives in Tehran.  After the Iranian New Year (20 March 2000) he had gone to Manjil, Bandar Anzali and Ardabil.  He said that he had spent two months in these towns, constantly moving around.  The remainder of the time he had spent staying with friends and relatives in and around Tehran.

The Applicant said that he had discussed with his friends whether he should go in and try to prove that he had had nothing to do with this but his friends had said that if you went in you did not know what would happen.  You could end up dead in the morgue.  He said that because he had no contacts or influence in the Government he had had no alternative way to resolve this matter.  The Applicant said that [deleted] had told him after he had been released that they had said to him that because the Applicant was a businessman and rich he must have been supporting [deleted]’s activities.  They had thought that he must have been providing the finance for the pamphlets and leading the group.  The Applicant said that if he were to return to Iran he would be tortured and hanged.  He said that whether he liked it or not they had put this on him and he had no way of proving that he had nothing to do with this.  His lawyer had told him that if a file was opened with these people he did not have the power to help him.

The Applicant’s wife confirmed that she had been a hairdresser and beautician and that she had had her own business for 12 years prior to leaving Iran.  Her business had been in the same building as their home.  She repeated her husband’s claims set out above.  She said that her husband’s student employee [deleted] had told her husband later on that he was a very active member of the Mujahideen-e-Khalq.  He had also participated in the ‘university riots’.  He had been using the premises and the telephone and the fax machine at the shop for his political activities.  The Applicant’s wife said that [deleted] had explained to her husband that if you were a member of the Mujahideen the regime called you murtad (an unbeliever), which meant you would be sentenced to death.  She said that her husband had returned home from Bandar Anzali on Friday.  He had talked to [deleted] that same night and the following day he had gone into hiding.  She had seen him only at the Iranian New Year in Bandar Anzali.

The Applicant’s wife said that the Ettelaat had shut her business down.  This had been done in the name of the local council but she had found out that the Ettelaat had been responsible.

She said that she had had no problem with any government agency except that her business had been subject to harassment.  Sometimes her employees had left the shop with their hair not properly covered and wearing make-up and this had caused problems.  For example once an employee had left the business in this way and she had been smoking during Ramadan and this had caused problems for her because she had been this person’s employer.  She said that this harassment was not the reason she had had to leave Iran.

The Applicant’s wife said that she had been detained by the Ettelaat.  She had been questioned about her husband, not about her business.  They had wanted to know where her husband was, they had pushed her around and they had  said that her husband was an anti-government agent.  They had said that if she did not cooperate with them she would also be destroying the future of her children.  This had lasted about a week.  The Applicant’s wife said that the authorities had not told her why they had released her.  She said that she thought that it was possible that they had released her because they had been trying to use her as a bait to get to her husband.  For a while after she had been released she had stayed with relatives because she had been psychologically affected by what had happened when she had been detained.  She had been using sedatives to calm her down.  She said that after she had been released she had been afraid that the next time they might detain her children.

The Applicant’s wife said that financially they had been well-off in Iran:  if they had not had other problems they would not have left.  Because her husband had had a shop and was wealthy they had presumed that he had been assisting [deleted] with the Mujahideen movement.  His life had been in danger.  The Applicant’s wife confirmed her husband’s account of how they had financed their escape from Iran (by selling the last shipment of goods which he had received from overseas).  She said that because she had left Iran illegally she would face prosecution as well.”

10                  In addition to the statements of the applicant and his wife, the Tribunal had before it a letter from the applicant’s lawyer in Tehran, a translation of which stated that on 23 February 2000 the applicant had a problem with the Iranian intelligence services and that the lawyer had declined to act for the applicant in respect of that matter.  The applicant had said in his statement in support of the application for a visa that in February 2000 his lawyer in Tehran had said that he could not help the applicant.  The applicant told the Tribunal that no lawyer in Iran would take up a matter involving a challenge to the security services.

11                  It was not in issue that if the claims of the applicant were accepted as true, or possibly true, it would follow that the risk that the applicant may suffer persecution if returned to Iran would be real and that his fear of persecution would be well-founded.

12                  In reviewing the Minister’s decision the Tribunal conducted a hearing by video transmission on 7 February 2001, at which the Tribunal and the interpreter were at the Tribunal’s premises in Sydney and the applicant and his wife were at a telecentre in Derby.  Counsel for the applicant submitted an affidavit by an interpreter fluent in the Farsi and English languages, who stated that he had listened to the tape recording of the Tribunal hearing and that the recording showed that the interpreter at the hearing had failed to interpret all the words the applicant had spoken in Farsi.

13                  The Tribunal’s statement provided the following reasons for determining that the applicant did not have a well-founded fear of persecution:

“I accept that the evidence of the Applicant and his wife has been by and large consistent and that it is corroborated to a limited degree by the letter from the lawyer stating that the Applicant had a problem with the Ettelaat and that the lawyer refused to act for him in that matter.  However I consider it implausible that the authorities would have suspected the Applicant of some connection with the Mujahideen-e-Khalq just because pamphlets were found in the store-room of his shop and the fax machine had been used for overseas contacts.  As referred to above, the Applicant’s evidence is that his student employee, [deleted], concealed the pamphlets on the premises because he was under surveillance following the student demonstrations in July 1999 and I consider that, if the Applicant’s evidence were to be accepted, the suspicions of the authorities would have fallen on [deleted].  Furthermore, I consider it implausible that, if the authorities had suspected the Applicant after finding pamphlets in the store-room of his shop, they would not have searched his home immediately or at least have placed his home under surveillance so that they could arrest him as soon as he returned from Bandar Anzali.  Even if, for some reason, they missed him after his return from Bandar Anzali, I consider it implausible that, if they were searching for him as he claims, they would not have located him at some time during the next five months while he remained in Iran, for example by following his wife and children to Bandar Anzali, where they met him for the Iranian New Year.

Accordingly I do not accept the evidence of the Applicant and his wife with regard to their reasons for leaving Iran when they did.  I do not accept that the Applicant had a student employee, [deleted], who was an active member of the Mujahideen-e-Khalq, nor that pamphlets of the Mujahideen-e-Khalq were found in the store-room of his shop when it was raided in February 2000.  I do not accept that the authorities were searching for the Applicant as a result of their having found these pamphlets and as a result of [deleted] having used the shop and the fax machine and the telephone at the shop for his political activities.  I do not accept that the Applicant spent the five months between February 2000 and August 2000 in hiding from the authorities, nor that his home was repeatedly searched during this period, his business confiscated and his wife’s hairdressing salon closed on the orders of the Ettelaat.  I do not accept that the Applicant’s wife was detained for about a week in June 2000 nor that she was questioned with regard to where her husband was and told that he was an anti-government agent.  I consider that the evidence of the Applicant and his wife with regard to their reasons for leaving Iran when they did is a fabrication.

Since I do not accept the evidence of the Applicant and his wife with regard to their reasons for leaving Iran when they did I do not accept that they left Iran illegally.  I do not accept that the Applicant is on the black-list of persons prevented from leaving Iran, nor that, when a friend took his passport to the Passport Office to find out if his name was on the black-list, his friend’s contact checked the computer and confiscated the passport because the Applicant’s name was on the black-list.  Since I do not accept that the Applicant and his wife left Iran illegally, I do not accept that they will face any penalty or punishment for this reason if they return to Iran now or in the reasonably foreseeable future.”

14                  The obvious point that emerges from the foregoing passage is that the Tribunal did not purport to find, on probative material, that the applicant was dishonest or fraudulent.  To the contrary, the Tribunal accepted that the applicant’s claims had been consistent and were supported by the account provided by his wife and by a letter provided by the applicant’s lawyer.  The Tribunal did not form any adverse impression of the applicant or his wife in respect of the presentation of their “evidence”, insofar as it was possible for the Tribunal to do so in a proceeding conducted by video transmission.

15                  The Tribunal, however, listed three items in the applicant’s account which the Tribunal said it “consider[ed]…implausible”.  The context in which the word “implausible” was used by the Tribunal shows that, at its highest, the meaning attributed to the word by the Tribunal was, as counsel for the Minister submitted, that the Tribunal considered the events “unlikely to have occurred”.

16                  The Tribunal then purported to state that it “did not accept”, in seriatim, all elements of the applicant’s case.  The only basis for complete rejection of the applicant’s account able to be identified from the Tribunal’s statement was that the Tribunal  had formed an opinion that occurrence of the three events referred to by the Tribunal was unlikely.

17                  It is necessary to examine in turn each of the claimed events and the effect of the Tribunal’s opinion that it “consider[ed] it implausible”.

18                  First, the Tribunal said it “consider[ed] it implausible” that Iranian intelligence authorities “would have suspected the Applicant of some connection with the Mujahideen-e-Khalq just because pamphlets were found in the store-room of his shop and the fax machine had been used for overseas contacts”.  The Tribunal’s reason for that view was that it thought that any suspicion on the part of the authorities would have been directed to the applicant’s employee rather than the applicant and, therefore, it could be concluded that the event described by the applicant was “implausible”.  Putting to one side the flaw in logic in the reasoning of the Tribunal, and that it was obvious that it was possible and not inherently improbable that the security forces could have acted as claimed by the applicant, it was the applicant’s case that the intelligence service suspected that the proximity of the applicant to a suspected Mujahideen operative, and the presence of Mujahideen pamphlets in the applicant’s shop, indicated that the applicant had permitted his business premises to be used to support the Mujahideen cause.  Notwithstanding that the interest of the intelligence services in the applicant’s employee had been the cause of the raid on the applicant’s shop, discovery of Mujahideen pamphlets on the premises and that the applicant’s facsimile machine had been used for the dissemination of that material, brought the applicant to the notice of the security service as a person of interest.

19                  Second, the Tribunal said it “consider[ed] it implausible” that the security authorities would not have searched the applicant’s home immediately or placed his home under surveillance in order to arrest him upon his return to Tehran.  With regard to the search of the applicant’s home, it was the case of the applicant that his home was searched some days after the applicant’s shop was entered by the security service and, as stated by the applicant’s wife, it was searched on four to six occasions thereafter.  In respect of the matter of surveillance there was nothing before the Tribunal to show that his home was not under observation by intelligence services.  In any event, the events related by the applicant were obviously possible and not inherently improbable.  How or when the security services formed a view as to what steps should be taken or how operations in respect to the applicant should be conducted, could be no more than speculation on the part of the Tribunal.

20                  Third, the Tribunal said it “consider[ed] it implausible” that the security services would not have located the applicant in the five months in which the applicant was in hiding before he left Iran.  Again, that statement involved speculation on the part of the Tribunal.  It could not be said to have been impossible, or contrary to commonsense, for the applicant to have evaded apprehension for that period of time.

21                  In the end, in respect of each event, the Tribunal, by use of the word “implausible”, did no more than state a view on the degree of likelihood of the occurrence of that event and, in effect, record that it had not been persuaded by the applicant that the event described had occurred as claimed.

22                  The task the Act required the Tribunal to carry out was to determine the chance of events occurring in future after first attempting to determine what was likely to occur.  As Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ said in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559at 574-576:

“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable.  Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.  The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.  In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty.  In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded.  In between these extremes, there are varying degrees of probability as to whether an event will or will not occur.  But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

…

It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.  If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.”

23                  That instruction was amplified in Abebe v Commonwealth of Australia (1999) 197 CLR 510 by Gleeson CJ, McHugh J at [83]:

“The [applicant] carried no onus of proof in relation to these matters, and the fact that she might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that her claim for refugee status must fail.  As Guo [at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution.  The Tribunal ‘must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution’ [Guo at 576].”

24                  The decision the Tribunal had to make was whether the applicant had a well-founded fear of persecution and, in making that decision, the Tribunal could not exclude relevant matters from its consideration.  In determining whether the applicant’s fear, namely that he would suffer persecution in future if returned to Iran, was well-founded, the Tribunal had to  put all relevant matters into the balance and ask itself if there was a real risk that such persecution may occur.  Notwithstanding that the Tribunal may not have been persuaded that past facts relied upon by the applicant had occurred as claimed by him, any assessment of the degree of risk of persecution facing the applicant in the future, had to take those claimed events into account.

25                  As Brooke LJ, with whom Robert Walker LJ concurred, said in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469-470:

“For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk]  of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.”

26                  As noted above, at their highest, the reasons of the Tribunal recorded that the Tribunal had not been persuaded by the applicant that each of the claimed events had occurred as stated by him.  The reasons did not state that the Tribunal had made a positive finding, based on probative material or logical grounds, that the events had not occurred.  (See:  Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [147].)  The Tribunal speculated that Iranian intelligence services would not have acted as claimed and purported to rely upon that speculation to put that part of the applicant’s case to one side. 

27                  The Tribunal was bound to consider the events the applicant claimed to have occurred in assessing whether there was a real chance that future events feared by the applicant may occur.  (See:  Abebe per Gleeson CJ, McHugh J at [85]; Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 576).  Notwithstanding that the Tribunal was not satisfied affirmatively that events had occurred as claimed by the applicant, the Tribunal had to assess whether it was possible that those events involving the applicant and Iranian intelligence had occurred and had done so by reason of political opinion imputed to the applicant.  Having made that assessment, the Tribunal had to proceed to determine whether the applicant had a well-founded fear of persecution by assessing whether there was a real chance that, if the applicant were returned to Iran, the applicant would be dealt with by Iranian authorities as feared by the applicant, namely, by arbitrary detention and deprivation of liberty, interrogation and extra-judicial treatment.

28                  Having accepted that the letter from the applicant’s lawyer “corroborated” the applicant’s claims “to a limited degree”, the Tribunal failed to analyse how that aspect of the applicant’s case bore upon the existence of a real, as opposed to fanciful, risk of persecution facing the applicant at the hands of Iranian intelligence services, in particular, Ettelaat.  The lawyer’s letter confirmed that at the time the applicant claimed he went into hiding, the applicant had a problem involving the intelligence services in respect of which the lawyer would not risk his own position by taking up the applicant’s cause.  That would appear to be a circumstance of some relevance to the assessment of the extent of the risk of persecution facing the applicant, when considered together with other information within the knowledge of the Tribunal, namely, that the conduct of Iranian security and intelligence services included the regular use of torture and other acts prejudicial to the welfare and safety of persons subjected to their attention.

29                  Importantly, the lawyer’s letter confirmed that whilst in Iran the applicant feared the attention of Iranian intelligence and security services and it lent weight to the applicant’s claim that he went into hiding to avoid it.  The applicant’s apprehension that he would be persecuted if returned to Iran, grounded as it was on a set of events that included the lawyer’s reluctance to assist him, could be said to be a well-founded fear if it could be said that there was a real, and not fanciful, risk that he would be interrogated by Iranian authorities and put at risk of serious harm.  If, as the Tribunal appeared to accept, the letter from the lawyer supported the applicant’s claim that he was a person of interest to Iranian intelligence, the letter had to be taken into account in assessing whether there was a real risk that persecution may face the applicant if he returned to Iran.  In that regard the Tribunal would have to take into account the information before it that citizens returning to Iran from abroad may be subjected to search and extensive questioning in respect to their activities abroad and in particular, whether they had been involved in conduct outside Iran opposing the Iranian regime.  Therefore, the question whether the circumstances of the applicant involved the risk that the applicant would be handed to security forces upon his return to Iran, had to be given very close scrutiny.  The Tribunal had to take into account that the applicant had no passport and could only be returned to Iran by arrangements made with Iranian authorities, a circumstance likely to bring him to the attention of security services before such a return.

30                  The statement by the Tribunal that the evidence of the applicant and his wife “with regard to their reasons for leaving Iran” was a “fabrication” stood as a bare assertion.  It was relied upon by the Tribunal to relieve itself of the obligation to take account of the possibility of the occurrence of past events in assessing the prospect of the occurrence of future events of persecution.  As stated by the United States Court of Appeals in Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7^th Cir. 1992) at 1131: 

“A bare conclusion is not an adequate discharge of an administrative agency’s responsibilities unless the ground or argument that it is rejecting is frivolous.”

31                  This was not a case where the Tribunal could point to basic inconsistencies in accounts given by the applicant or his wife on previous occasions and nor was there probative material before the Tribunal to show that any part of the applicant’s claims was untrue.  There was no independent country information inconsistent with the applicant’s claims regarding the events he said caused him to flee with his family.  By describing the three events as “implausible” and by relying upon that statement to dismiss the applicant’s claims in their entirety, the Tribunal misapprehended and incorrectly applied the relevant law.

32                  The Tribunal had made no positive or affirmative findings which discredited the applicant in respect of the claimed events thereby permitting the Tribunal to discount possibilities arising out of the applicant’s claims that it otherwise would have been obliged to consider.  (See:  Abebe per Gleeson CJ and McHugh J at [85], Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 576.)

33                  It follows that the Tribunal failed to carry out the review process it was charged to perform by the Act, that failure being rooted in the misinterpretation by the Tribunal of the relevant law in respect to the meaning of “well-founded fear of persecution”, or in the misapplication of that law to the facts, thereby providing ground for review under s 476(1)(e) of the Act.  Further, it may be said that the Tribunal failed to take into account a relevant consideration, or failed to ask and determine the correct question in purporting to make the decision that it was not satisfied that the applicant had a well-founded fear of persecution.  In those circumstances ground for review also arose under s 476(1)(b) or (c) of the Act.  (See:  Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gleeson CJ at [10], McHugh Gummow and Hayne JJ at [76]-[83].)

34                  The applicant having established the grounds for review set out above, it is unnecessary to deal with the further grounds relied upon in the amended application, namely, that there was a failure by the Tribunal to observe a required procedure by failing to have the applicant’s statements adequately interpreted in the course of the hearing conducted by the Tribunal (s 476(1)(a)), or that the decision of the Tribunal was based upon non-existent facts (s 476(1)(g), s 476(4)(b)).

35                  The decision of the Tribunal must be set aside and the matter remitted to the Tribunal for redetermination.

Associate:

Dated:              8 August 2002