FEDERAL COURT OF AUSTRALIA

WADU v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1252

MIGRATION – appeal – refusal of protection visa – Iranian of Arab ethnicity –breach of the requirements of procedural fairness not breached by failure of Tribunal to inquire concerning initial interview – no duty on Tribunal to so inquire – copying of country information from other decisions did not give rise to jurisdictional error –Tribunal did not wrongly reject letter – evidence to support findings concerning discrimination against Arabs – no failure of process of review

Migration Act 1958 (Cth) s 36(2), 422B, 424, 424A, 425, 474, 476(1)(a)

Federal Court of Australia Act 1976 (Cth) s 27

NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449 referred to

Kioa v West (1985) 159 CLR 550 applied

Sivalingam v Minister for Immigration & Multicultural Affairs (unreported, Goldberg J, 5 March 1998) cited

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

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 followed

Hourn v Farm Plan Pty Limited [2003] FCA 1122 cited

Gomez v Minister for Immigration & Multicultural Affairs [2001] FCA 935 considered

Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48 considered

WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 followed

W389/01A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 432 followed

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 applied

WADK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 48 followed

Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142 followed

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

SGFB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 422 applied

SBAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 67 followed

WADU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

W340 of 2002

RD NICHOLSON J

7 NOVEMBER 2003

PERTH

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

            1 The appeal be dismissed.

            2. The appellant pay the respondent’s costs of the appeal.

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                     The appellant arrived in Australia on 1 September 2000.  He  claimed to be a citizen of Iran.  On 16 March 2001 he lodged an application for a protection (class XA) visa pursuant to the provisions of the Migration Act 1958 (Cth) (‘the Act’).  On 11 May 2001 a delegate of the respondent refused the application.  On 24 December 2001 the Refugee Review Tribunal (‘the Tribunal’) affirmed the decision of the delegate.  On 28 November 2002 Federal Magistrate Barnes dismissed an application for review of the decision of the Tribunal.  The matter now comes before the Court by way of appeal from the decision of the Federal Magistrate.

2                     It is not in dispute that the amendments to the Act effected by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which became operative on 2 October 2001 were applicable to the application for review of the Tribunal’s decision.

tribunal’s reasons

3                     In its reasons the Tribunal said that the appellant had initially made claims that as an Arab he faced discrimination in Iran but that he had never been involved in any political organisation or taken any action against any political group or government.  However, when he lodged his application for a protection visa he claimed he had become involved in a political organisation, acting as a courier and filming checkpoints between Iraq and Iran.  The political group concerned was identified by him as the Arab Nationalist Party (Khalq-e-Arab).  He claimed to have left Iran because of a well-founded fear of persecution deriving from the fact that the intelligence authorities had discovered his role with that group. 

4                     Turning to the inconsistencies between these accounts, the Tribunal stated that the claims made by the appellant on arrival could generally be described as those of a person frustrated by traffic restrictions imposed on truck drivers and social restrictions imposed by the authorities in Iran.  His explanation for the inconsistencies between that account and the one made in support of his application for a protection visa was that he had flagged the problems by mentioning that Arabs are discriminated against when he first arrived and that he had been unaware of the requirements for a protection visa or the contents of the Refugees Convention.  The Tribunal found the two sets of claims inconsistent and unable to be reconciled.  It considered that, because he had not on arrival identified the source of his well-founded fear in the terms which he had subsequently done so, it could not be believed that he had acted as he had claimed or that he was a member of the political organisation the Arab Nationalist Party. 

5                     In relation to a claim made by the appellant that he had been arrested or jailed, this had not been made when he was first interviewed and, in any event, the Tribunal considered it was of a civil nature, the appellant himself having agreed it was not for a political reason or opinion or because of his ethnicity. 

6                     The Tribunal found claims by the appellant to have carried material and filmed Iranian checkpoints to be implausible because it did not consider that members of a political organisation would choose the appellant shortly after he had come to the adverse attention of the authorities, even if that had arisen from a civil offence.  Furthermore, the Tribunal found it implausible that he would be asked to film two checkpoints which were on the road between Bostan and Ahvaz since that was a public road and details of those checkpoints would be a matter of public knowledge. 

7                     A further claim by the appellant to have been discovered in the possession of parcels and films for the Arab Nationalist Party was also found to be implausible because his belief that he would be at risk as soon as he was involved in those activities was inconsistent with his having entered a house leaving the incriminating evidence of the camera and parcels in a truck outside. 

8                     A further assertion by the appellant that he had escaped from authorities was found to be unconvincing and fabricated together with the rest of an account in which the appellant was said to have carried out clandestine work for the Arab Nationalist Party.  This was regarded by the Tribunal as having been said for the sole purpose of enhancing an otherwise weak set of claims for a protection visa. 

9                     In relation to a document tendered to the Tribunal by the appellant from another Arab group (Ahwazian Arab Peoples’ Democratic Popular Front) based in London to support his claim that he was a political activist, the Tribunal did not accept the genuiness of that document.  It said:

‘For reasons discussed above I do not accept that the Applicant was a member of Kalq e Arab or the group named on the letterhead of the letter and accordingly am not satisfied that this letter established that he was.  Although the letter may genuinely have been provided by an organisation in London I find it has been provided to support the Applicant’s fabricated account and not because he is a member of the organisation or that the has carried out work for the group.’

10                  The Tribunal then made findings of fact in the following terms:

‘1.        The Applicant is  citizen of Iran from Ahvaz.

2.                He is of Arabic ethnicity.

3.                Ahvaz is in Khuzestan province and the majority of people there are Arabs. 

4.                The Applicant was a Driver for his Father’s business.

5.                The authorities place restrictions on trucks entering the city and parking in the city.

6.                Arabs do not face serious discrimination in Iran.

7.                The Applicant is not a member of Kalq e Arab.

8.                There is a group of Arabs from Khuzistan calling for Arab autonomy but his group is based overseas and is not or (sic) any political importance.’

11                  Additionally, the Tribunal found that the appellant’s motivation for leaving Iran was as he claimed when he first arrived in Australia; that is, that he did not like the social restrictions in Iran and also disliked the traffic laws and the area in which he was living, which was underdeveloped.  His reason for coming to Australia had therefore been to find a better lifestyle.  These were matters which were not recognised by the Refugees Convention.  It did not accept that he was a member of a political group or the he was politically active or of interest to the authorities so that any fears he may hold in regard to persecution for his political opinion were not well-founded. 

12                  The Tribunal found the appellant did not face a real chance of discrimination amounting to persecution in Iran.  In considering the situation of Arabs in Khuzestan the Tribunal found he was able to earn a living through a business owned by his father who was also Arabic.  Consequently, it concluded, any fears he may hold in regard to persecution for his race were not well-founded. 

13                  The contention by the appellant that he had left Iran using a fraudulent passport was rejected by the Tribunal on the ground that there was no reason for him to do so.  Alternatively, if that was wrong, the consequences of the illegal act would not bring the appellant within the ambit of the Convention.

14                  As the Tribunal found the appellant was not a person to whom Australia owed protection obligations under the Refugees Convention, he could not satisfy the criterion set out in s 36(2) of the Act and so the decision not to grant him a protection visa was affirmed. 

federal magistrate’s reasons

15                  The appellant was unrepresented before the Federal Magistrate.  A number of the issues which he raised before the Federal Magistrate were inviting the Court to engage in further merits review, a function lying only within the Tribunal.

16                  The Federal Magistrate, as he was then bound to do, proceeded to approach the application of s 474 of the Act in the light of the decision of the Full Court of the Federal Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 193 ALR 449. 

17                  His Honour rejected a contention that the Tribunal had failed to take into account a relevant consideration by not taking into account the appellant’s departure on a forged Iraqi passport.  Further, he found there was nothing to suggest a denial of natural justice by the Tribunal in failing to question the appellant or to make inquiries to the extent suggested by him in relation to that or any other issue.  It found there was no evidence to support a contention by the appellant of misinterpretation before the Tribunal.  His Honour considered that the treatment of the letter from the London organisation did not establish bad faith, actual bias or constituted a lack of bona fide attempt to exercise power or a breach of any inviolable limitation on the power of the Tribunal.  There was nothing to suggest the conduct of the Tribunal had been capricious or arbitrary or involved personal fault on the part of the decision-maker.  Nor was there anything to suggest an abuse of power or the knowing exercise of power for an improper purpose or no attempt or no honest or genuine attempt to undertake the task of review.  The Tribunal had not placed any reliance on an incorrect account of the extent of the appellant’s schooling.  The Tribunal’s assessment of the appellant’s credibility and the inconsistent accounts was essentially a matter for it and had been put to him in a s 424A letter.  Its reasons for rejecting the credibility of the appellant’s claims in this respect did not demonstrate an erroneous process of reasoning or bias or lack of good faith.  The combination of complaints did not establish a lack of bona fides or bias in the Tribunal.  The appellant’s claim for review was therefore rejected by the Federal Magistrate. 

grounds of appeal

18                  By way of an amended notice of appeal, five principal matters were raised for the appellant by pro bono counsel.  These were addressed in 27 grounds of appeal.  The five issues sought to be addressed on behalf of the appellant invoke various of these grounds.  No point would be served by recounting the grounds save so far as they arise in respect of each of the five issues to which I now turn. 

19                  It common ground that, following the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, if the appellant can establish the existence of jurisdictional error, the decision of the Tribunal will not be a privative clause decision protected by s 474 of the Act.

evidence

20                  On the hearing of the appeal, counsel for the appellant sought to tender an affidavit from the appellant sworn 4 July 2003 and an affidavit from Dr MacMillan sworn 18 July 2003.  The former contains evidence said for the appellant to be relevant to the fresh evidence ground of appeal and to a ground based upon the nature of the appellant’s initial interview and an alleged failure by the Tribunal to apply its mind to the evidence.  Dr MacMillan’s affidavit is said to be relevant to the fresh evidence ground of appeal.  Objection is taken on the part of the respondent to the admission of either of these affidavits.

21                  The Court has power to receive further evidence on appeal in its discretion but otherwise ‘shall have regard to the evidence given in the proceedings out of which the appeal arose…’; Federal Court of Australia Act 1976 (Cth) s 27.  Central to the issue of the discretion is whether the evidence sought to be tendered is relevant: SGFB v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 422 at [16].  As the first affidavit seeks to bring evidence arguably relevant to different grounds, it was accepted that the admission of each of the affidavits should be considered in respect of each ground where said to be relevant to that ground.

procedural fairness

22                  In the first broad ground it is contended that the Tribunal’s decision was invalidated by what occurred at the initial compliance interview.  It is argued that the appellant was encouraged by an interpreter engaged by the respondent not to fully state his case.  It is submitted that such advice led to the appellant being found by the Tribunal not to be a credible witness.  It is argued that because the Tribunal did not inquire into the specific manner in which the initial interview took place, there was a breach of procedural fairness on its part.

23                  In support of this ground the appellant seeks to have admitted pars 7 to 10 of the affidavit of the appellant.  In those paragraphs the appellant recounts what he says was the advice given to him by the interpreter.  In addition he states that a document read to him was not well understood due to the language barrier; the interpreter spoke in Farsi which is a language he did not understand very well; and the surroundings were intimidating so that he decided to say as little as possible.

24                  The factual position on this issue before the Tribunal was as follows.  The appellant’s representative had submitted on 12 July 2001 in writing that ‘there is an overwhelming body of anecdotal evidence from detainees that at these initial arrival interviews, interpreters advise them to give only brief answers because the interview team has a large number of people to get through.’  On 16 July 2001 the Tribunal sent a notice to the appellant pursuant to s 424A of the Act.  The letters drew attention to the record of interview with the appellant on 6 October 2000 and stated:

‘The details of that interview show that you were informed that should you provide details at a later time which differed from those you provided at the interview this could lead to a conclusion that your account lacks credibility.

I attach a copy of the record of interview and the details you provided which include a statement that you did not have any association or involvement against any government or party.

However, you later claimed in your protection visa application that you belonged to an Arab Party and were active in the party in opposing the government authorities.  There are also other differences between the two accounts.

This information is relevant because the differences between the two accounts could lead the Tribunal to conclude that you fabricated the later account when you discovered that your first account did not allow you to be considered for a protection visa.

You are invited to comment on this information. …’

25                  By letter dated 20 July 2001 the appellant informed the Tribunal:

‘But when I first arrived in Australia, as I am not an educated person, I was really scared to mention that I was a political activist because my assumption was that Australia and international regulations would not protect me as such a person.  I thought that they might deport me back to Iran.  Because of that I only mentioned Arabs’ problems and even some of Arabs’ problems in Iran.

I was of the idea that I should not disclose my secrets.  It was right that I was told that my secrets would be treated as confidential but the course of life had taught me not to trust anybody.

On the other hand I did not have any adviser to seek his advice and ask him if I was really protected or not.  Now that I have a private adviser who acts independently I am convinced that I can express my statements without any fear.  He assured me that the international regulations would protect me, and he also assured me that Australia would comply with the international regulations.

It was because of these reasons that I could express my statements fearlessly at the second interview.  And this is the truth that I mentioned.’

26                  In its reasons the Tribunal addressed ‘The Inconsistencies Between the Accounts.’  It referred to the s 424A letter sent to him.  It then addressed his explanation of the inconsistencies relating to his earlier and later claim.

27                  The ground as pressed has two elements to it.  The first is that the duty of procedural fairness arose as part of the requirements of natural justice (s 422B not having then been introduced to the Act).  The second is that the duty to inquire required inquiries to be made by the Tribunal.

natural justice component

28                  The requirements of natural justice will always take their colour and force from the particular circumstances in which they are said to arise: Kioa v West (1985) 159 CLR 550 at 585.  For the following reasons, I do not consider that any such duty arose here.

29                  First, the legislative provisions do not provide any support for the appellant’s contention.  The conduct of the review before the Tribunal is dealt with in Pt 7 Div 4 of the Act.  Section 424 authorises a Tribunal to get any information that it considers relevant.  Section 424A requires it to give notice to an applicant of particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.  Section 425 requires the Tribunal to invite the applicant to appear before it to give evidence and present arguments.  These provisions to do not cast any onus on a Tribunal to make specific inquiries.

30                  Secondly, the factual circumstances before the Tribunal did not require it to make any inquiry of its own.  The opportunity was given by it by the issue of the s 424A letter for the appellant to place his case before the Tribunal.  He did so, although not in the same terms as he now seeks to do in the affidavit.  For the purposes of determination of whether a duty of procedural fairness was breached, however, it is the provision of the opportunity which is determinative.  Although the Tribunal did not repeat the response on those matters, it clearly had his responsive submission before it and took it into account.

31                  Thirdly, although pro bono senior counsel for the appellant referred to the decisions in Sivalingam v Minister for Immigration & Multicultural Affairs (unreported, Goldberg J, 5 March 1998) and Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 451, there is nothing in the reasoning in those cases upon which to erect the kind of obligation contended for in this ground.

duty component

32                  The submissions for the appellant do not make clear where the source of this element of the ground is to be found.  For the following reasons I do not consider any such duty arose.

33                  First, it is clear the provisions of the Act do not mandate an inquiry.

34                  Secondly, the law is cautious in moving towards the existence of any such duty: Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273, considered by me in Hourn v Farm Plan Pty Limited [2003] FCA 1122 at [44].  There is some authority which suggests that it is conceivable that circumstances may arise where there is an obligation to undertake the investigations or examinations mandated by s 427(1)(d) of the Act (Gomez v Minister for Immigration & Multicultural Affairs [2001] FCA 935 at [26] and Azzi v Minister for Immigration & Multicultural Affairs (2002) 120 FCR 48 at [113]).  There is a balance of authority against the proposition: WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277 at [25]; W389/01A v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 432 at [78]; SBAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 67 at [10].

35                  Thirdly, there is no evidence of any submission having been made on behalf of or by the appellant before the Tribunal that such an inquiry should have been made by the Tribunal.

36                  Fourthly, for the reasons given on the nature of the circumstances here pertaining, there was no reason to occasion the inquiry here even if the law permitted of a duty of inquiry in the terms implied in the submissions supporting the ground.

37                  It follows that the evidence in pars 7 to 10 of the appellant’s affidavit cannot assist resolution of this ground and so are irrelevant.

use of extracts from prior reasons

38                  The next broad ground of appeal contends that the Tribunal failed to consider the merits of the case because it applied its general approach as adopted in other earlier cases involving applicants in a similar position.  This is said to have occurred in relation to that passage of the reasons of the Tribunal as appears under the heading ‘Arabs in Iran.’  It is argued that the Court should review the process by which the Tribunal arrived at its ‘satisfaction’ to determine whether it was consistent with the fact-finding procedure envisaged by the Act for the assessment of applications for a protection visa: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 88, [132] per Kirby J in dissent.

39                  This is sought to be supported by reference to extracts from country information referred to in par 11 of the tendered affidavit of the appellant.  There the appellant refers to three decisions of another member of the Tribunal and contends the use of passages by way of repetition from those decisions shows that the Tribunal failed to consider the merits.

40                  I agree with the submission made for the respondent that a court cannot infer anything concerning the workings of the mind of the member of a tribunal simply from finding identity in passages as alleged.  Equally importantly, it was not the country information which determined the outcome of the proceeding; rather it was the inconsistency between the appellant’s accounts.

41                  Admission of the evidence in this respect would not therefore advance the appellant’s case.  In any event it is not contested that, as the proposed evidence is contained in the record of the decision of the other tribunal member, the Court could take notice of it.

rejection of london letter

42                  The next broad area of appeal is that the Tribunal fell into errors of law in rejecting the letter of 17 July 2001 from the Ahwazian Arab Peoples’ Democratic Popular Front.  It is alleged the Tribunal failed properly to consider the letter and to make findings on material questions of fact in relation to it.

43                  The letter in question was on the letterhead of the Ahwazian Arab People’s Democratic, Popular Front.  It stated that the appellant is an Arab political activist in Al-Ahwaz and ‘is well known by some members of our organization as an Arab political-social activist.’  In its reasons the Tribunal recounted that content, pointing out that the letter did not provide any details apart from that statement.  Later the Tribunal found that the letter did not satisfy it that the appellant was a member of Khalq-e-Arab or the Ahwazian group.  It found the letter had been provided to support the appellant’s fabricated account and not because he is a member of the organisation or carried out work for the group.  This followed a reasoning process in which the Tribunal was not satisfied in relation to a number of claims of the appellant.

44                  The case for the appellant asks that the affidavit of Dr MacMillan be taken into account on this ground.  He gives his qualifications as involving experience of the Middle East including undertaking research on Iran’s Arab minority.  His proposed evidence includes in particular evidence on Arab Iranian opposition organisations including the Khalq-e-Arab.  It is sought to use it to establish that the Tribunal was in error of fact, although it is not asked that this Court on appeal make definitive findings of fact in place of the impugned findings.  In my view, that is impermissibly asking this Court to engage in merits review.  The appeal is to be determined by reference to what was before the Tribunal.  It is not for this Court whether by way of fresh evidence or otherwise to make findings of error of fact in the reasoning of the Tribunal.  For that reason alone the affidavit of Dr MacMillan should not be admitted.

45                  There is a further reason why that should be so.  It is open to a Tribunal which is convinced that a principal witness is fabricating a story to reject corroborative evidence, even though there is no separate or independent ground for its rejection, apart from the reasons given for disbelieving the principal witness: S20/2002 at 63, [12] per Gleeson CJ; at 70, [49] per McHugh and Gummow JJ.

no evidence for two findings

46                  It is contended for the appellant that there was no evidence before the Tribunal to entitle it to arrive at two of its specific findings, namely, ‘Arabs do not face serious discrimination in Iran’ and ‘There is a group of Arabs from Khuzistan calling for Arab autonomy but his group is based overseas and is not of any political importance.’

47                  The simple answer to this ground is that there was evidence upon which the findings were based, as appears from the reasons of the Tribunal as referred to in the oral submissions for the respondent.  In any event, the two findings were peripheral, the critical determinant being the rejection of the appellant’s second account for its inconsistency.

process of review

48                  There are grounds put in terms of a failure to observe proper procedure under the former s 476(1)(a) of the Act.  Now the issue could only be whether the alleged failures had the consequence that there was no true exercise of jurisdiction so that there was no ‘decision’ to be protected by the privative clause, s 474.  The appellant’s case has not made out the detail of how this may be the case.  The notion has been impliedly rejected in WADK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 48 and Minister for Immigration & Multicultural & Indigenous Affairs v NAOS of 2002 [2003] FCAFC 142.  There is no proper basis upon which the ground can be made out.

Conclusion

49                  For reasons given above the tender of the affidavits of the appellant and of Dr MacMillan must be refused and the appeal dismissed with costs.

Associate:

Dated:              7 November 2003