FEDERAL COURT OF AUSTRALIA

SCAN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 168

MIGRATION – appeal from Federal Magistrates Court – whether there was a failure by Refugee Review Tribunal to extend procedural fairness to a visa applicant – adverse credibility finding – finding that a document produced by the visa applicant was fabricated – whether letter from Refugee Review Tribunal gave notice to the visa applicant that the genuineness of the document was under question – whether the letter was positively misleading by suggesting otherwise – whether jurisdictional error – whether s 474 of the Migration Act 1958 (Cth) applied.

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 474, 424A

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228;  (2002) 193 ALR 449 referred to

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 applied

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543 cited

Re Refugee Review Tribunal;  ex parte Aala (2000) 204 CLR 82 cited

Re Minister for Immigration and Multicultural Affairs;  ex parte Miah (2001) 179 ALR 238 cited

Re Minister for Immigration and Multicultural Affairs;  ex parte “A” (2001) 185 ALR 489 distinguished

Re Minister for Immigration and Multicultural Affairs;  Ex parte Lam [2003] HCA 6 cited

SCAN v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 180 of 2002

von DOUSSA J

ADELAIDE

11 MARCH 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  Appeal allowed.

2.                  Judgment and orders of the Federal Magistrates Court set aside.  In lieu thereof order that the decision of the Refugee Review Tribunal dated 25 February 2002 be set aside, and the matter be remitted to the Refugee Review Tribunal for determination according to law.

3.                  Respondent to pay the appellant’s costs of this appeal and of the application for review before the Federal Magistrates Court.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     This is an appeal from a decision of the Federal Magistrates Court made on 9 July 2002.  The appeal has been heard by a single Judge pursuant to a direction of the Chief Justice given under s 25(1A) of the Federal Court of Australia Act 1976 (Cth). 

2                     The decision of the Federal Magistrates Court dismissed an application for review of a decision of the Refugee Review Tribunal (the Tribunal) brought under s 39B of the Judiciary Act 1903 (Cth).  The decision of the Tribunal made on 25 February 2002 affirmed a decision of the delegate of the respondent made on 17 December 2001 refusing the appellant a protection visa. 

3                     The appeal came on for hearing on 4 December 2002.  At that time the privative clause provision in s 474 of the Migration Act 1958 (Cth) (the Act), as construed and applied by the majority of the Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 228;  (2002) 193 ALR 449 (NAAV), presented an obstacle to the ground of appeal which the appellant sought to advance.  The High Court of Australia had, however, heard argument and reserved judgment in Plaintiff S157/2002 v Commonwealth of Australia, a matter which raised fundamental questions about the constitutional validity and scope of s 474.  Rather than delay the hearing of this appeal, the parties agreed to proceed on the understanding that if the Court considered that the ground of appeal advanced by the appellant should succeed, s 474 apart, the Court would delay giving judgment until after the High Court delivered judgment.  The High Court delivered judgment on 4 February 2003:  Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (Plaintiff S157/2002), and, contrary to the majority judgments in NAAV held that s 474 of the Act does not protect from invalidity a decision made in breach of procedural fairness.

4                     The sole ground of appeal pressed by the appellant contends that the Tribunal denied the appellant procedural fairness in that he was not given notice that the Tribunal had a doubt about the genuineness of a document submitted by the appellant in support of his visa application, and that the Federal Magistrates Court erred in rejecting that argument. 

The Claims and the Tribunal’s Reasons

5                     The appellant is a citizen of Iran.  He arrived illegally by boat in Australia in August 2001 and applied for a protection visa on 25 September 2001.  He is aged in his late twenties.  Since his arrival in Australia he has given a number of accounts of circumstances which occurred in Iran in the twelve months or so before he departed for Australia, and which he now says cause him to fear persecution for reason of a perceived political opinion held about him by the Iranian authorities.  Although the detail that he has given about some of those events has differed over time, his basic version of events is that:

·                     His life in Iran had not been bad.  He worked in Tehran in a fabric shop with his brother.

·                     In 2000 he entered into a relationship through a process called “Aqd Nama” with a daughter of a religious leader who was a Mullah or Akhound. 

·                     The appellant’s “father-in-law” arranged for the appellant to work in an office to provide a secure financial life for his daughter, and to this end directed that he attend at a particular building.

·                     The appellant went to the building on three occasions.  He realised that the building was an Ettelaat office.  The Ettelaat is the Ministry of Intelligence and Security which incorporates SAVAMA, the successor organization of the Shah’s secret police, SAVAK.  At the building he was asked to complete forms, and it was suggested to him that he would be required to do observation and intelligence work. 

·                     Once the appellant became aware of the identity of his intended employer, he refused to work for them. 

·                     The appellant’s father-in-law and his fiancé/wife tried to convince him to work for Ettelaat, and told him that he could not “back out” as he had completed the documents.  His refusal to undertake the work led to arguments with his father-in-law, with the father-in-law threatening him that he would have trouble both from the father-in-law and Ettelaat.

·                     Members of Ettelaat began to “stalk” the appellant’s shop.  His brother was arrested and tortured, though released after two days.  The appellant understood that Ettelaat wanted to arrest him, and for that reason he left Iran.

·                     The appellant said that because he had refused to take up the position with Ettelaat an adverse political opinion would be imputed to him by the authorities.  He asserted that he would be imprisoned, tortured and possibly executed if he were to return to Iran. 

6                     The Tribunal concluded that it was not satisfied that the appellant  had a well-founded fear of being persecuted for a Convention reason if he were to return to Iran, and accordingly he was not a person to whom Australia owed protection obligations.  This conclusion was reached as the Tribunal did not accept the appellant’s credibility.  This led to the Tribunal not accepting the appellant’s account of events, save for the first of those matters listed above. 

7                     The Tribunal published lengthy reasons which canvassed the matters which caused the Tribunal to reach an adverse decision about the appellant’s credibility.  In the course of those reasons the Tribunal identified two matters which it described as problems with the appellant’s evidence:

·                     When first interviewed in Australia, and in his initial application, the appellant said that he was engaged and that the date of the intended marriage had not been decided.  However, by the time of the hearing before the Tribunal, the appellant was asserting that he was married, and said that he should have been understood as always asserting that fact.  Before the Tribunal the appellant produced a document, marked “A” by the Tribunal, that purported to be a summons by the Ministry of Justice requiring the appellant to attend a Family Court hearing on 18 November 2001.  The text of the document said that the reason for attendance was “[t]o attend court on the given date and time to represent yourself.  The court will deal with your spouse Petition …”.  In respect of this evidence the Tribunal said:

            “I consider that it is clear that when his original application was prepared and when he was interviewed by the primary decision-maker he spoke in terms of being engaged to be married rather than in terms of having been legally married at the Registry Office.  As I put to the Applicant, I consider that he has altered his evidence on this point to fit in with the document which he has produced which, as he himself pointed out, is predicated on his having been legally married.”

·                     The Tribunal considered there had been another change in the appellant’s account of events made in an attempt to make it clear that he manifested a political opinion opposed to the regime in Iran.  In a letter dated 11 January 2002 addressed to the Tribunal the appellant claimed for the first time that in his last “fight” with his father-in-law he had expressly insulted the regime, the supreme leader of Iran, the government officials and his father-in-law, who was himself one of the heads of the Ettelaat.  He accused them of theft, misuse of public funds, moral corruption and committing treason against the people of Iran.  At the hearing before the Tribunal he added that this fight with his father-in-law had taken place the same day that the Ettelaat had come to arrest him.  The Tribunal considered that the appellant had had three earlier opportunities to tell this story, but had never mentioned previously that he and his father-in-law had had an argument the same morning that the Ettelaat had come to his shop to arrest him.  When this was put to the appellant by the Tribunal in the course of his evidence, he said that on the earlier occasions he had been instructed to be brief.  The Tribunal noted that it had listened to the tape of the interview with the primary decision-maker, and the appellant had not been told that at all.  The Tribunal considered that the appellant had altered his evidence to bolster the strength of his claim that the authorities considered him to hold an adverse political opinion.

8                     In addition to these two matters which the Tribunal considered to be “significant alterations” in the appellant’s evidence, the Tribunal considered there were other “good reasons for not accepting that the [appellant] is telling the truth”, namely:

·                     The Tribunal did not accept that his future father-in-law, a deeply religious man, would consent to his daughter marrying a person who expressed the beliefs and exhibited the behaviour which the appellant, in his evidence, attributed to himself. 

·                     The Tribunal did not accept that the appellant’s future father-in-law, said to be a devout person, would have tried, in effect, to entrap the appellant into joining the Ettelaat in the manner suggested by the appellant.  Rather, the father-in-law would simply have told him that he had a suitable job for him with the Ettelaat.

·                     The Tribunal did not consider that it made sense for the appellant to say, as he did, that when he entered the building to which he had been directed, he recognised people as Hezbollahi or Ettelaat people, but did not realise that it was the Ettelaat that was going to employ him until he was told at his third visit that he would need to undertake training in martial arts, and the use of firearms, and in spying or eavesdropping.  The Tribunal gave further details of the appellant’s evidence on this topic, and rejected the appellant’s attempt to explain away the Tribunal’s concerns by asserting inadequacy in the interpreter services. 

9                     The Tribunal observed that any one of these problems with the appellant’s evidence might not, in itself, be sufficient to cast doubt on his credibility.  However, taking into account the cumulative effect of these problems, the Tribunal concluded that the appellant was not a witness of truth.  The Tribunal considered that he had demonstrated that he was prepared to tailor his evidence to what he perceived to be to his advantage. 

Grounds of Review before the Federal Magistrates Court

10                  Two grounds of challenge to the decision of the Tribunal were argued before the Federal Magistrates Court, first, that the Tribunal denied the appellant procedural fairness, and secondly, that the Tribunal failed to comply with the requirements of s 424A of the Act.  Both grounds were based on the contention that the appellant was not informed that the Tribunal considered that the document marked “A”, which he had produced to the Tribunal as evidence of his marriage in Iran, was fabricated.  In support of this contention, the appellant filed in the Federal Magistrates Court a number of other documents that he said he would have placed before the Tribunal had he known that the genuineness of the document found to be a fabrication was in issue.  Those documents included what appear to be a petition in the Civil Court of Tehran by the appellant’s wife against the appellant claiming a dowry payment, a judgment of the Civil Court awarding a dowry payment against the appellant in favour of his wife, a document from the Office of Registration of Documents and Properties, Tehran, recording notice of the appellant’s marriage, a copy of his marriage certificate, and copies of wedding photographs which the appellant deposed showed him and his wife exchanging rings.  Affidavits verifying these documents were received by the Federal Magistrates Court as evidence of the type of documents which could have been provided to the Tribunal to corroborate the testimony of the appellant and to refute a proposed finding of fabrication, had the appellant been made aware that the genuineness of the document which he had presented to the Tribunal was in question.  The appellant deposed that these documents were not in his possession at the time of the hearing before the Tribunal, but had been obtained by him from his family in Tehran after he became aware of the finding of fabrication made by the Tribunal.

11                  The Federal Magistrates Court dismissed the application for review on the ground that the Tribunal, in a letter dated 30 January 2002 (the s 424A letter), had complied with the requirements of s 424A, and by that letter had also sufficiently put the appellant on notice that the Tribunal had concerns about the document marked “A” as well as about the oral evidence of the appellant. 

Consideration

12                  Before this Court the appellant again contended that the Tribunal denied the appellant procedural fairness, but no longer placed reliance, in the alternative, on a failure to comply with the requirements of s 424A of the Act.  The reason for not relying on s 424A is explained below at [18]. 

13                  The appellant’s submission must be considered in light of the process of reasoning which led the Tribunal to its conclusions.  Having detailed the two matters said to indicate significant alterations in the appellant’s evidence, and the other “good reasons for not accepting that the [appellant] is telling the truth”, the Tribunal went on to say:

“I do not accept that the [appellant] was engaged to be married or married to a woman whose father was a Mullah or an Akhound, a teacher at a mosque or a prayer-leader at a mosque, or one of the heads of the Ettelaat.  As indicated above, I do not accept that a person of this character would have agreed to his daughter marrying a person like the [appellant], who by his own evidence does not consider it important to go to the mosque and is opposed to the concept of the Supreme Leader.  As I put to the [appellant], I consider that he has altered his evidence with regard to whether he was married or merely engaged to be married to fit in with the document he produced, purporting to require him to attend the Family Court in Tehran.  Since I do not accept that the [appellant] was married, as he now claims, I consider that this document is a fabrication, procured in an attempt to provide corroboration for the [appellant’s] narrative.”

14                  In my opinion, there are two major criticisms to be made about this passage in the Tribunal’s reasons which led to the conclusion that the document marked “A” is a fabrication.  First, I do not think the conclusion that the appellant significantly altered his evidence about his marital status is soundly based on the evidence.  Secondly, the reasoning that led to the conclusion of fabrication is illogical.

15                  As to the first criticism, whilst the appellant is recorded in his initial interview, and in his original visa application as saying that he was engaged, the document and interview as a whole raises a serious doubt whether the appellant understood the ordinary English meaning of the notion of “engaged”.  For example, in relation to his original interview, whilst he said in relation to question sixteen concerning his marital status that he was never married but was engaged, in the next question, he gave particulars of his “spouse”.  In the course of his interview he frequently spoke of his “father-in-law”.  The important feature of his evidence was that he had a relationship with a woman whose father had the characteristics which he described.  It does not appear material to his claims whether, strictly speaking, the relationship was one of engagement or marriage.  When the Tribunal in the s 424A letter expressed its concern about the description of the appellant’s marital status, the migration agent representing him responded by informing the Tribunal:

“Our client has consistently claimed that, in the eyes of the law, he is, in fact, married.  What is at issue is the cultural interpretation of what constitutes a legal and binding marriage and what is only a betrothal …  Our client explained to his Adviser … that he had, in fact, married and had engaged in the ceremony and process known as Aqd Nama.  Such a process means that our client was indeed legally married.  However, culturally the marriage is not fully sanctioned by the respective families, as well as other relatives and local community, until, what we would term in the West, a reception has taken place.” 

In light of this explanation, and other information given about the nature of the betrothal ceremony, I think there was no sound basis for making the criticisms which the Tribunal did about this aspect of his evidence.

16                  As to the second criticism, illogical reasoning exists in two respects.  First, the reasoning is circular.  The Tribunal considered that the appellant had altered his evidence so as to fit in with the document which purported to summons the appellant to the Family Court.  This reasoning assumes the validity of the document, or at least the relevant statement in it which asserted that he is legally married.  The Tribunal then reasons that this change (in conjunction with the other matters) indicated a preparedness to tailor his evidence.  Therefore his evidence could not be accepted.  Therefore the appellant was not married and document “A” must be fabricated.  Moreover, if the summons was fabricated, why would the appellant propound a false document that did not accord with his evidence? 

17                  This Court, however, on an application for judicial review is not empowered to correct erroneous findings of fact reached by a process of illogical reasoning:  Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 160 ALR 543.  Counsel for the appellant acknowledged this jurisdictional limitation, and did not seek to rely upon the illogicality of the Tribunal’s reasoning process as the ground for seeking review.  Nevertheless, it is necessary to appreciate the process of reasoning of the Tribunal, to understand the significance of the denial of procedural fairness upon which the appellant challenges the Tribunal’s decision.

18                  At the conclusion of the hearing before the Tribunal at which the appellant gave oral evidence, the Tribunal wrote the s 424A letter to the appellant saying that the Tribunal had information that would, subject to any comments which the appellant might make in answer, be the reason or part of the reason for deciding that the appellant is not entitled to a protection visa.  The information put to the appellant comprises his allegedly inconsistent statements about his marriage status, about his lack of realisation about the occupancy by the Ettelaat of the building to which he was sent by his father-in-law, and about the timing of the last “fight” with his father-in-law.  The information thus given to the appellant was information already known to him – indeed it consisted of statements made by him.  The concerns of the Tribunal had already been made known to the appellant in the course of the oral hearing.  In these circumstances the provision of the letter appears to have been a matter of exhaustive precaution, not strictly required by s 424A of the Migration Act:  see s 424A(3)(b).  Counsel for the appellant, in the course of his submissions, recognised that the nature of the information which the letter conveyed to the appellant was of a kind that probably did not attract the need to give notice under s 424A, and for that reason did not press the argument that there had been a failure to comply with that section.  As the appellant no longer relies on an alleged breach of s 424A, there is no need to consider the submissions made by counsel for the respondent that the section does not lay down inviolable conditions that must be fulfilled before a decision to which the section has application is one made “under this Act” within the definition of “privative clause decision” in s 474(2) of the Act. 

19                  However, the s 424A letter is of importance in these proceedings for two reasons.  First, it is contended that the Federal Magistrates Court erred in finding that sufficient notice was given by the s 424A letter that the genuineness of the document marked “A” was in question.  Secondly, counsel for the appellant has argued that the following paragraph which appeared in the s 424A letter not only fails to give notice to the appellant that the genuineness of the document marked “A” was in question, but is positively misleading in that it implies that the genuineness of the document is accepted.  Counsel points out that it is therefore understandable that the migration agent in responding to the s 424A letter dealt with the apparent inconsistencies in the appellant’s evidence, and did not at all address the genuineness of the document marked “A”.  The relevant paragraph in the letter reads:

“At the hearing before the Tribunal you said that you were in fact married.  You said that in Iran, when a couple were engaged they went to the Registry Office.  All that was left was to have the wedding reception or party.  You have produced what purports to be a document requiring you to attend the Family Court in Tehran and referring to a claim or complaint by your spouse.  The inconsistency in your evidence with regard to whether you claim to have been married or merely engaged to be married casts doubt on whether you are telling the truth.  As the Member constituting the Tribunal put to you in the course of the hearing on 21 January 2002, it raises the question whether you have altered your evidence to fit in with the document you have produced (which suggests that you are married, not merely engaged, as you had said previously).”  (emphasis added)

20                  In my opinion the appellant’s contentions should be accepted.  I do not consider that the above passage conveys notice that the genuineness of the document marked “A” was in doubt, and it is not suggested that the appellant was otherwise made aware of that fact.  It is also my opinion that the words emphasised in the above passage convey that the Tribunal accepts that the document is genuine and that the document is properly to be used as a reference point against which to test the appellant’s oral evidence.

21                  It is now established that the Minister, and on review the Tribunal, are obliged to extend procedural fairness to visa applicants:  Re Refugee Review Tribunal;  ex parte Aala (2000) 204 CLR 82;  Re Minister for Immigration and Multicultural Affairs;  ex parte Miah (2001) 179 ALR 238;  Re Minister for Immigration and Multicultural Affairs;  ex parte “A” (2001) 185 ALR 489;  and Plaintiff S157/2002.  It may be open to doubt whether in the context of the Act the obligation to extend procedural fairness descends to the level of requiring that in every case the visa applicant be informed whenever the decision-maker questions the veracity of a document or other material proffered by the applicant.  But in this case, the appellant was informed that the veracity of his claims was under question and he was invited to respond.  The requirement of procedural fairness must be assessed in light of the information that he was given.  The misleading inference in the s 424A letter that the document marked “A” was being treated as genuine is likely to have had the effect which the appellant asserts, namely that he did not put forward many other documents to support the conclusion that the document marked “A” was genuine.  In the result I consider procedural fairness did not occur.

22                  In this case, unlike the situation in Re Minister for Immigration and Multicultural Affairs;  ex parte “A” (2001) 185 ALR 489, the appellant has by affidavit filed in the Federal Magistrates Court, established that there was material which he could have placed before the Tribunal, had he known that there was reason to do so.  There was unfairness in a practical sense as the appellant has demonstrated the loss of an opportunity to put forward further information to the decision maker:  see Re Minister for Immigration and Multicultural Affairs;  Ex parte Lam [2003] HCA 6 at [36] – [37], [106], [112], [149] – [151].

23                  Moreover, in the circumstances of this case I consider that the additional material, had it been placed before the Tribunal, might well have resulted in a different outcome.  The adverse credibility finding was the consequence of the cumulative effect of the five problems with the appellant’s evidence.  Two of those problems were thought to be indicative of deliberate alterations in the appellant’s evidence to bolster his case.  As I understand the Tribunal’s reasons, these two problems were treated as of more importance than the others.  The additional material would have strongly indicated that the appellant was married, as he said in evidence, and that the document marked “A” was not fabricated.  Had the Tribunal so concluded the adverse finding as to credit that led to the rejection of his claims might well have been different.  In short, I consider the failure to extend procedural fairness in this case was material to the outcome of the appellant’s application, and constituted a manifest jurisdictional error:  Plaintiff S157/2002 at [12] – [13] and [160].

24                  In my opinion the Federal Magistrates Court erred in holding that the obligation to extend procedural fairness, assuming such an obligation existed and however it arose, was complied with by the s 424A letter.

25                  The failure to extend procedural fairness constitutes a jurisdictional error, and accordingly the decision of the Tribunal was not a decision made under the Act within the meaning of the definition of “privative clause decision” contained in s 474(2) of the Act:  Plaintiff S157/2002, [38] and [83].  As the decision is not a privative clause decision, it is not protected from challenge by s 474(1). 

26                  For these reasons I consider the appeal should be allowed.  The judgment and orders of the Federal Magistrates Court should be set aside and in lieu thereof it should be ordered that the decision of the Tribunal made on 25 February 2002 be set aside, and the matter be remitted to the Tribunal for determination according to law.  The respondent should pay the costs of this appeal, and of the application for review before the Federal Magistrates Court.

Associate:

Dated:              11 March 2003