FEDERAL COURT OF AUSTRALIA

WAGU v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 912

MIGRATION – Refugee Review Tribunal – judicial review – protection visa – adverse findings on credibility – corroborative documentary evidence – rejection of documentary evidence – unsupported speculation that documentary evidence produced as the result of arrangements made by the appellant with other persons in Iran – speculation never put to appellant – breach of procedural fairness – jurisdictional error – appeal allowed.

Migration Act 1958 (Cth)

Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 cited

Lobo v Minister for Immigration and Multicultural and Indigenous Affairs  [2003] FCAFC 168 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 cited

NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 cited

Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59 cited

WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 discussed

WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188 discussed

WAGU v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W264 OF 2002

FRENCH J

29 AUGUST 2003

PERTH

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal is allowed.

2.         The decision of the learned Federal Magistrate given on 23 August 2002 is set aside.

3.         An order in the nature of certiorari is made quashing the decision of the Refugee Review Tribunal made on 9 May 2002. 

4.         An order in the nature of mandamus is made requiring the Refugee Review Tribunal to reconsider the appellant’s application according to law.

5.         The respondent is to pay the appellant’s costs of the appeal and of the application in 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

Introduction

1                     The appellant is a national of Iran.  He arrived in Australia by boat without lawful authority on 31 December 2000.  He is a qualified veterinarian.  He applied for a protection visa in August 2001.  That application was refused by a delegate of the Minister on 17 January 2002.  On 23 January 2002, the appellant applied for review of that decision in the Refugee Review Tribunal (‘the Tribunal’).  On 9 May 2002, the Tribunal affirmed the decision not to grant a protection visa.  The appellant then applied for judicial review of that decision in the Federal Court.  That application was remitted to the Federal Magistrates Court.  On 23 August 2002, that Court dismissed the application for review.  The appellant now appeals from that decision to this Court.  The Chief Justice has directed that the appeal be heard by a single judge.

Claims and Evidence

2                     On 13 January 2001, the appellant was interviewed through an interpreter by an officer of the Department of Immigration and Multicultural and Indigenous Affairs.  The interviewing officer made notes of the appellant’s responses to questions put to him. 

3                     The appellant was asked why he had left his country of nationality.  He said he had completed technical aspects of an examination which would qualify him to continue his studies as a professional overseas.  He was refused permission to study overseas because he had failed to support Islamic principles.  He was a nationalist thinker and believed in the separation of religion from government.  This had happened in 1996 or 1997.  He was labelled from that time and could not get a government job.  He opened his own veterinary clinic in his town after he had completed military service.  However the clinic did not prosper because it had to compete with a government funded clinic.  He then rented and operated two chicken farms.  This was in about 2000.  Because of chicken flu the business went bad.  Subsequently he discontinued the leases.  He said there was no social or individual freedom in his town.  The people were not allowed to use satellite dishes.  It was a stressful life with no guarantee of future financial prospects.  They were the reasons why he left Iran.  He had been a member of Basij, a government law and order body, but he lost interest when his application for study overseas was rejected. 

4                     Asked if he had any reasons for not wishing to return to Iran the appellant is recorded as having told the interviewing officer that his intention was to bring his family here.  He had no other problems because he was a member of ‘Basij’.  He had not been approved for overseas study.  While there might be problems in another country for him he did not know if this were the case. 

5                     In support of his protection visa application the appellant signed a statutory declaration on 5 October 2001.  In it he said he began working for the Basij as a volunteer in about 1985.  His priority at the time was to support the government and army in the war against Iraq.  He collected money and items for their soldiers.  He remained an active member until he began studying at Ahvaz University in 1988.  At that university he was introduced to the writings of Dr Shariati.  He spent a lot of time reading his publications.  As a result he changed his mind about Islam and the Mullahs’ regime. 

6                     The appellant said there was a group at the university called Anjoman Islami which is a well known and powerful group.  He spent a lot of time disagreeing with them and their views on the regime and Islam.  In his final year at university the appellant was asked to sign a letter confirming that he would stop propagating opinions which were adverse to Anjoman Islami.  If he didn’t there was a high chance that he would be dismissed from the university.  He said he signed the letter because he wanted to complete his degree.  In his final year he had the option to sit an exam which, if he passed it, would allow him to study overseas with government funding.  He passed the exam but it was also necessary that he be vetted by various bodies within the university.  One of these was the Anjoman Islami group.  That group told a selection committee that the appellant did not accept Ayatollah Khomenei, the leader of the Islamic Republic of Iran, and was therefore not a Muslim.  They also alleged that he was opposed to the Islamic Republic of Iran.  As a result he did not receive the scholarship to study overseas. 

7                     In 1994, according to the appellant, he graduated from university with the highest marks in his field.  Usually the top graduate would be offered a position as a lecturer within the university but he was not.  He was unsuccessful in seeking employment in government departments. 

8                     Following the completion of his military service he opened up his own vet clinic.  In 1996 or 1997 Khatami became President following which people found there was more freedom to express their views and political opinions.  From that time he began talking to his clients about politics and expressing his thoughts on the government. 

9                     The appellant said that in February 1999 there was a parliamentary election due.  He supported a candidate whose name was Rasoul Varahpaee.  As appears later in the materials, Varahpaee was associated with a party called the Freedom Movement of Iran.  He began promoting Varahpaee’s views to his clients and the people he met.  He remained a member of the Basij but was not actively involved with it.  He came to oppose that party because he regarded it as an organisation whose mission was to control people who opposed the government.  Despite this he could not stop being a member because if he did they would believe that he was against them.  The Basij Party insisted that its members attend Friday prayer and congregation which the appellant did not.  They were against people shaving their beards each day as he did.  They would monitor people under suspicion by tapping their telephones or keeping their friends and contacts under surveillance.  The appellant said both of those things happened to him. 

10                  He was told by a Basij Party member, who was a friend, that he should leave the country as the word was out that the Party was looking for him.  They were monitoring his movements and were concerned with his lack of active involvement with the Party.  They had heard of his political opinions.  He said it was common for the Basij Party members to take people whom they believed opposed them.  These people would often never return. 

11                  The appellant formed the view that his life was in great danger and decided he had no other choice but to leave.  He said he obtained a passport with the help of a friend who worked in the Police Department.  He pretended he was travelling to one of the Holy Places in Syria.  He departed from Tehran airport with a friend who travelled with him all the way to Australia.  They went to Malaysia and thereafter to Indonesia where they were taken by a people smuggler on a boat to Ashmore Reef.

12                  The appellant said that after his departure from Iran members of the Basij Party and people from the Ministry of Information came to his home in search of him.  His family told him this.  He was put in detention at the Woomera Detention Centre but escaped from there and his photograph, together with others who escaped, was published in an Iranian newspaper.  Following that publication the Basij Party members again came to his home and ransacked it.  They went to his parents’ house and his father-in-law’s house.  They removed all of his Dr Shariati books.  They told his parents that when he called they should advise him to return to Iran.  He expressed his fear that if forced to return to Iran he would be killed.  The government, he said, believes that he is against them because of his participation and support for the Nehzat Azadi or Freedom Movement of Iran. 

13                  The appellant said he had escaped from the Woomera Detention Centre because he heard that the Iranians who were not represented by lawyers were going to be deported back to Iran.  He did not have a lawyer and had not seen one since he arrived.  

14                  In the course of its reasons for decision, the Tribunal referred to country information about the Nehzat Azadi Group which was translated in the country information as the Liberation Movement of Iran and also as the Freedom Movement of Iran.  It had been established in 1960 as a group in opposition to the Shah.  After two years the party was banned and most of its leadership imprisoned.  It was revived outside Iran in 1978.  The party leadership formed an alliance with Ayatollah Khomenei and returned him to Iran in February 1979.  In 1980, differences emerged between the Freedom Movement and the Hezbollahi.  A ban was imposed on the Movement’s newspaper and many of its members were arrested and its property confiscated.  It then became a kind of ‘loyal opposition’ supporting the revolution but unable to agree with the direction and methods of the fundamentalist Hezbollahi faction which depended on Khomenei’s authority.  The Movement which is described as ‘moderate and secular minded’ is led by its Secretary-General, Ibrahim Yazdi – see Department of Foreign Affairs and Trade 1996 Country Profile of Iran.  It has been described by the UK Home Office as supportive of constitutional rule by political parties within an Islamic framework.  However it does not agree with a role for clerics in government.   

15                  The appellant made a written statement to the Tribunal which was submitted by his adviser prior to the hearing.  He reiterated that he was an active supporter of Nehzat Azadi which had been banned shortly after he left Iran in March 2001.  He was not formally a member of the Movement because it is not the common practice of the dissident parties in Iran to register membership.  He feared that an Iranian agent had attended the court hearing where his case was summarised.  This appears to have been a reference to his court appearance following his escape from immigration detention. His wife had received a ‘friendly warning’ from an Iranian government official with the same surname, who was related to the appellant by marriage. The official said he had received information about the appellant from one of his former colleagues now working in the Iranian Embassy in Canberra.  His wife had been arrested and detained for twenty-four hours on 23 February 2002 and questioned by agents of the Ministry of Information about the appellant’s whereabouts.  They told her to tell the appellant that he must return to Iran. 

16                  At the hearing before the Tribunal the appellant elaborated upon his claims.  The Tribunal put to him that his claims appeared to have evolved considerably over the time since his arrival interview.  He said he had always claimed that his relationship with the Basij changed.  When he was completing his protection visa application there had been a disturbance at the detention centre as a consequence of which he had been involved in resuscitating an injured warder.  He had been warned by the people smuggler not to mention political matters upon his arrival in Australia.  He had been told that it was sufficient to mention economic reasons for leaving Iran. 

17                  Following the hearing the Tribunal received a further submission from the appellant’s adviser which summarised his claims.  Enclosed with the submission was a copy of an email message from the appellant’s migration adviser to the Secretary-General of the Freedom Movement of Iran and the latter’s reply concerning the appellant’s involvement.  It was put to the Tribunal that it could investigate further if there were any doubt about the credibility of that evidence.

18                  The texts of the relevant emails were set out in the appeal papers.  The first email was dated 27 March 2002.  It was addressed to Dr Yazdi and was sent by the appellant’s adviser.  Its text was as follows:

‘I am [WAGU’s] legal representative.  I have been asked by [WAGU] to seek your support in writing.  [WAGU] has been in immigration detention for some months now.  He has made an application for refugee status on the grounds of his active support for Nehzat-e-Azadi (Freedom Movement).  he (sic) has informed me that you would be able to provide him with a letter of support outlining firstly, the nature and extent of his activities and support for the Freedom Movement.  Secondly, the fact that is awaiting him if he is forced to return to Iran. (sic)  Please begin your letter by giving a brief background about who you are ie: your own background, your current activities against the Iranian regime, the persecution that you have suffered in Iran or are likely to suffer if you were to return to Iran.  Please also outline how long you have known my client and you have first met him (sic).

If any question arise please contact me by your preferred mode of communication.  My details are stated hereunder.  My client is scheduled to appear before the Court on 04.04.2002.’

The reply email was dated Friday, 29 March 2002 over the name of Dr Yazdi.  It was in the following terms:

‘In reference to your letter dated March 27, 2002, on behalf of [WAGU], the following information could be provided.

According to the information I received from the heads of our party in Naein and Isfahan, [WAGU] has been actively involved in the campaign headquarter of Mr Rasoul Varahpaei(sic), the independent reformist candidate in Naein during the last parliamentary election.  Since the Guardian Council, violated the Constitution and the Parliamentary Election Act and rejected our party’s candidate for the said election, our party supported Mr Varahpaei.  All members and sympathizers of our party, thus, were active in his campaign.  [WAGU] continued his cooperation with our party till he left Iran.  For information own (sic) my background, you may go to internet and search under my name.

With regards

Ebrahim Yazdi, PhD

Secretary General

Freedom Movement of Iran’

The Tribunal’s Reasons for Decision

19                  In its findings and reasons the Tribunal found that the appellant’s claims had evolved considerably over time and that he was not a credible witness.  He had indicated full awareness of the differences between his arrival interview and later claims and the potential implications of those when asked about that in interview with the delegate and later at the hearing.

20                  The Tribunal noted that when the appellant suggested at the arrival interview that he had views opposed to those of the regime, he answered in the negative to the question whether he was a member of any other political organisation.  He did not mention the writings of Dr Shariati, nor that he had been made to sign an undertaking about the propagation of political opinions nor that he had been under Basiji surveillance.  Nor did he mention being warned that the Basiji was looking for him because of his political opinions.  He made no mention of the Iran Freedom Movement or Rasoul Varahpaee.  The Tribunal said the reasons given for not mentioning these things were neither persuasive nor credible.  If the appellant had really been leaving behind that level of political activity and had hoped to take refuge in Australia he would have mentioned these matters at the arrival interview.

21                  While the Tribunal accepted that the appellant was not sufficiently strongly affiliated with the Islamic regime to obtain a scholarship or a government job, it did not accept that his lack of success in these endeavours constituted serious harm to him or continued to place him at risk of serious harm or that they happened because of his political opinion.  Being a member of the Basiji initially he had placed himself as well as possible for such ideological assessments as might be carried out.  The Tribunal found the appellant, having joined the Basij at university, was not a known convert to liberal interpretations of Islam while at the university.  It found that he did not seek to propagate the views of Shariati among other students or to challenge Islamic orthodoxy in any overt way.  He was not made to sign any undertaking about this.  It also found that the Anjoman Islami did not accuse him specifically of being opposed to the Republic.

22                  The Tribunal found that the appellant’s loss of connection with the Basij was due to distance and because it didn’t get him the scholarship which he had hoped for.  It regarded as implausible the claim that his changed opinions and lack of active participation in the Basiji led him to be monitored.  It found that this did not happen.  It rejected the contention that he was warned to leave Iran because of his non-conformity with the Basij or over mosque attendance or his appearance. 

23                  The Tribunal also held that the issue of a passport to him supported a finding and so found that the authorities had no adverse interest in him when he left Iran.  It therefore did not accept that the authorities and the Basij came to his house and searched it and questioned his wife and seized his belongings after his departure.

24                  The Tribunal observed that despite ample opportunity to do so, the appellant did not mention until a late stage in the refugee determination process that he was not just an active supporter of Varahpaee but the leader of his campaign headquarters in Naeen both before and after the 1999 election.  While these two statements were not inherently inconsistent, it was not credible that the appellant would have omitted to state specifically earlier than he did the prominence of his role.  Relevant to the emails sent to it by the appellant’s adviser the Tribunal then said:

‘It is self-evident that the increasing focus on Nehzat Azadi and rising profile of the applicant in that organisation over the life of his claims was fabricated to take advantage of the fact that the Movement was targeted after he arrived in Australia, and in a context of increasing concern about the prospects of his application.  The Tribunal finds that the applicant is not an active supporter of the Nehzat Azadi or Varahpaee at all.  This is not to cast doubt on the character of the Freedom Movement’s Secretary General: his email reports what he has been told by people in Naeen.  No doubt the applicant is well-enough connected there to have such statements arranged.’

25                  The Tribunal went on to reject any prospect of persecution on a ‘sur place’ basis.  In the end it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention and therefore affirmed the decision not to grant a protection visa.

The Decision of the Learned Magistrate

26                  Following the refusal of his application by the Tribunal, the appellant sought judicial review in this Court, which application was remitted to the Federal Magistrates Court.  The appellant was not represented before the Federal Magistrates Court.  His grounds of review in that Court were that the decision involved an error of law, that there was no jurisdiction to make the decision and that the Migration Act 1958 (Cth) did not permit the making of the decision.  None of the grounds was particularised. 

27                  The learned magistrate observed that at its highest point the appellant’s claim for alleging a well-founded fear of persecution for Convention reasons was that he was an active supporter of the Nehzat Azadi (Iran Freedom Movement) which was banned shortly after he left Iran.  It was noted that he had also complained of discrimination in employment and educational opportunities.  The main thrust of his complaint about the Tribunal’s decision was that it was premised on the finding of his lack of credibility based on his failure to give any indication of his political activity at an early stage in the interview process.  The learned magistrate characterised this as essentially a complaint about a finding on the merits, which was not reviewable.

28                  The appellant also said to the learned magistrate that he did not understand how the Tribunal could have reached the conclusion that he had arranged for information to be provided to the Secretary-General of the Freedom Movement which enabled that person to send an email to his adviser confirming his participationin the 1999 election process.  The learned magistrate referred to the observations by the Tribunal in that respect as set out in the paragraph from the Tribunal’s reasons quoted earlier.  The learned magistrate then said:

‘There is certainly no evidence in the Court Book that I can see from which such a conclusion might be drawn.’

She went on to reject arguments based on inconsistencies in the Tribunal’s findings and a submission of bias indicative of want of bona fides. 

The Grounds of Appeal

29                  The appellant was represented on the hearing of the appeal by Mr G Britton, acting pro bono.  Mr Britton filed a Supplementary Notice of Appeal in Court.  The grounds of appeal as set out in that notice were as follows:

‘2.1      The learned Federal Magistrate fell into jurisdictional error in that he failed to find that there was a failure to accord procedural fairness and natural justice by the RRT to the appellant in rejecting evidence that the appellant supported the Nehzat Azadi (Freedom Movement of Iran) without giving the appellant the opportunity to be heard on the issue.

2.2       The decision of the learned Federal Magistrate is contrary to the legal principle enunciated by the High Court in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2.’

The reference to ‘jurisdictional error’ on the part of the federal magistrate was plainly erroneous.  It is common ground that the appeal was concerned with jurisdictional error on the part of the Tribunal by reason of its alleged failure to accord procedural fairness to the appellant.

Breach of Procedural Fairness

30                  The argument on the appeal focussed on the Tribunal’s rejection of the email from Dr Yazdi to the appellant’s adviser concerning his active involvement in the Freedom Movement and support for Mr Varahpaee, the independent reformist candidate.

31                  Counsel for the appellant submitted that, after receiving the copy emails, the Tribunal made no effort to seek further information from the appellant or from other sources about his involvement with the Freedom Movement.  In failing to obtain further information it was said to have denied the appellant procedural fairness and natural justice and to have made a ruling which could not reasonably be supported.  The denial of procedural fairness was said to arise from the failure by the Tribunal to give any indication to the appellant that it would reject the information in the email without giving him the opportunity to be heard on the issue. 

32                  There is no doubt, following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, that decisions of the Tribunal are amenable to judicial review for jurisdictional error notwithstanding the enactment of the privative clause provision, s 474.  It is not necessary for present purposes to revisit discussion of that decision most recently summarised and discussed in Lobo v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 168.  Further there is no doubt that breach of the requirements of procedural fairness can constitute jurisdictional error.  So much flows directly from Plaintiff S157.  The content of the requirements of procedural fairness will vary according to the circumstances of the particular case.  As McHugh and Gummow JJ recently observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502 at 513:

‘Different procedures may be required, even of the same repository of power, from one situation to the next…’

It is necessary to have regard to the particular circumstances of this case in determining whether there was a breach of procedural fairness on the part of the Tribunal.

33                  The learned magistrate, while expressing puzzlement about the way in which the Tribunal reached its conclusion concerning the emails, did not consider whether there was a breach of the rules of natural justice.  That, with respect, was understandable as, at the time she gave her judgment, the High Court had not delivered judgment in Plaintiff S157.  The construction of s 474 of the Migration Act was governed by the decision of the Full Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449 which had been delivered on 15 August 2002.  The effect of that decision was to preclude breach of natural justice as a basis for review of decisions under the Migration Act. 

34                  It may well be the case that where a Tribunal has made findings adverse to the credibility of an applicant before it, those findings may form a basis for rejecting the authenticity of documentary evidence tendered to the Tribunal by the applicant.  There is a danger in so proceeding because it may be that documentary material itself should be taken into account in assessing credibility.  To proceed otherwise risks putting the cart before the horse.  But to complain of such an approach is perhaps to complain about want of logic or inferior modes of reasoning rather than to identify jurisdictional error.

35                  In Re Minister for Immigration and Multicultural Affairs; Ex parte S20/2002 (2003) 198 ALR 59, McHugh and Gummow JJ observed at 70 [49]:

‘In a dispute adjudicated by adversarial procedures, it is not unknown for a party’s credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption.  It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (as here), to proceed on the footing that no corroboration can undo the consequences for a case put by a party of a conclusion that that case comprises lies by that party.  If the critical passage in the reason of the tribunal be read as indicated above, the tribunal is reasoning that, because the appellant cannot be believed, it cannot be satisfied with the alleged corroboration.  The appellant’s argument in this court then has to be that it was irrational for the tribunal to decide that the appellant had lied without, at that earlier stage, weighing the alleged corroborative evidence by the witness in question.  That may be a preferable method of going about the task presented by s 430 of the Act.  But it is not irrational to focus first upon the case as it was put by the appellant.’

36                  Corroborative evidence may be rejected as of no weight because it is dependent upon and can be shown to be undermined by findings as to the tendering party’s credibility.  In such a case a failure to put to the tendering party that the evidence may be so regarded cannot constitute a breach of procedural fairness.  This is just a special case of the general proposition that procedural fairness does not require the decision-maker, in this case the Tribunal, to invite comment upon its thought processes on the way to its decision.  But where corroborative evidence is rejected on the basis of a finding of fraud or forgery or on some other positive basis which has never been put to the tendering party there may be a failure of procedural fairness.  Such a failure may have very practical effects for it means that the corroborative material is never weighed in the balance of the general assessment of the tendering party’s credibility. 

37                  In the present case there is no doubt that the Tribunal made findings generally adverse to the credibility of the appellant.  It decided that the appellant’s claims of involvement with the Freedom Movement of Iran were fabricated.  That finding having been made would perhaps have supported a finding that the email from the Secretary-General should be given no weight.  But the Tribunal expressly disclaimed any reflection upon the character of the author of the email and observed that: 

‘No doubt the applicant is well-enough connected there to have such statements arranged.’

This was a proposition, which as the learned magistrate observed, was not supported by any evidence before the Tribunal.  It was a proposition that the Tribunal never put to the appellant and does not naturally flow from adverse findings as to his credibility.  It essentially involves a finding that the appellant has been involved in some kind of conspiracy with a person or persons in Iran to fabricate information about his connection with the Freedom Movement to dupe its Secretary-General so that he would send an email to Australia confirming the appellant’s involvement.  None of this was ever put to the appellant.  Moreover, it provided a basis for rejection of the document which meant that it did not have to be taken into account in the assessment of credibility. 

38                  It might be argued that the Tribunal’s reasons should be construed as involving an adverse finding in relation to the appellant’s credibility which in turn supports the rejection of the email evidence and the hypothesis that it was fabricated in the way suggested.  The difficulty with that characterisation of the Tribunal’s reasoning is that it is not apparent from the way the Tribunal has expressed itself.  The strong impression left after reading the reasons is that the Tribunal has reconciled the existence of the email evidence with its preceding findings as to credibility on the unsupported ground that it was produced pursuant to a fraudulent arrangement made by the appellant himself.

39                  In my opinion there was, in the Tribunal’s treatment of the email, a failure to accord procedural fairness to the appellant by at least putting to him the Tribunal’s suspicions about the way in which the email came into existence.

40                  There have been two recent decisions of the Full Court of the Federal Court, delivered on 15 August 2003, in which questions of procedural fairness involving Tribunal findings about the genuineness of tendered documents were involved.  They are WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 and WAEJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 188. 

41                  In WACO an Iranian national claimed to have a well-founded fear of persecution if returned to Iran because of his involvement with a reformist cleric, Shirazi.  After the hearing before the Tribunal the applicant’s advisers had provided translated copies of two letters which, if genuine, corroborated the claim of involvement with Shirazi.  One purported to be a letter from Shirazi himself to the applicant’s father thanking him for raising a son who sacrificed himself to preserve the true meaning of the Koran.  The other was from a third party testifying to his relationship with Shirazi.  The Tribunal found the applicant not to be a credible witness.  It was not prepared to accept either of the letters tendered to it as genuine.  It found that they had been prepared in order to bolster the applicant’s claims.  At no time had the Tribunal given any indication to the applicant that it doubted their genuineness, nor did it invite him to comment on that issue. 

42                  The Full Court held that the letters were ‘central to the [applicant’s] claim in so far as they were tendered as evidence of his relationship with the Ayatollah Shirazi’ – at [39].  Their Honours held that the question whether the letters were genuine did not directly depend upon the evidence of the applicant.  A finding that they were forgeries could turn upon the applicant’s credit in so far as it was a finding that the letters had been concocted to advance the applicant’s case.  If this were so, fairness would require that before a finding of forgery were made the person so accused should be given the opportunity of answering it.  Their Honours said:

‘A finding of forgery, just like a finding of fraud is not one that should lightly be made.  Both involve serious allegations.’

Where the finding of fact did not turn upon the credibility of the applicant and there was nothing on the face of the documents themselves to alert the decision-maker that they were forgeries, it was likewise inherently unfair that the decision-maker conclude that they were not genuine without affording the person affected by that conclusion the opportunity of dealing with it.  Their Honours said at [55]:

‘Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal.  The Tribunal could easily have relisted the matter and have arranged for the [applicant] to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary.’

Their Honours held that the applicant had succeeded in showing that the purported decision of the Tribunal was affected by jurisdictional error in that it had not afforded natural justice to the applicant by failing to give him the opportunity to answer the suggestion that the letters tendered by him after the hearing were not genuine.

43                  WAEJ also concerned an Iranian national.  He claimed to have been a member of a branch of the Marz-e-Porgohar, also known as the Movement for Freedom, and that the group had been involved in student demonstrations in July 1999.  His job in the group had been to distribute literature.  He claimed to have been arrested and detained for interrogation by plain clothes officers of the security organisation, Ettela’at.  Although subsequently released on bail on reporting conditions he was to be summoned to appear in court.  He fled Iran allegedly to avoid that event. 

44                  One of the matters complained of in the Full Court was that there had been a breach of the rules of natural justice in the failure of the Refugee Review Tribunal to give the appellant the opportunity to deal with concerns held by the Tribunal but not disclosed to him regarding the genuineness of a document submitted by the appellant to the Tribunal in support of his application.  This document was an email purportedly from a Mr Farahanipour as Executive Director of Marz-e-Porgohar, forwarded at the request of parties assisting the appellant.  The email stated that following the student uprising of 1999 many political activists such as the appellant and the author of the email were imprisoned and even after being released had been under constant surveillance and threat of government agents.  The Tribunal made the comment that after having regard to the unsatisfactory nature of the appellant’s evidence and the ‘timing of the document’ it was not satisfied as to its genuineness.  The Full Court said:

‘On its face the foregoing was a statement by the RRT the document was not authentic.  This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, a non-authentic, or forged document which the RRT could disregard.  There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis.’

Their Honours went on to say that if in truth the RRT did not believe that the document was authentic it should have advised the appellant and his solicitor accordingly and allowed the appellant, through his solicitor, to make any inquiries that were necessary to enable the appellant to produce further material to the Tribunal or to satisfy the Tribunal in respect of the document.

45                  Both of these cases may be said to turn on their own facts.  But their facts are sufficiently similar to the facts of the present case to reinforce my view that there has been a breach of procedural fairness on the part of the Tribunal.

Conclusion

46                  In the circumstances, I am satisfied that the appeal must be allowed, the decision of the Tribunal quashed and the matter remitted to the Tribunal for consideration according to law.

Associate:

Dated:              29 August 2003