FEDERAL COURT OF AUSTRALIA

WAFK v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCA 1293

MIGRATION – judicial review – protection visa – Refugee Review Tribunal – duty to consider claims – use of common form text in reasons for decision – in statements of general principle – in findings based on independent country information – in findings as to credibility – common form text modified to take account of particular claims by appellant – undesirability of use of common form text in credibility findings – no jurisdictional error – appeal dismissed.

Migration Act 1958 (Cth)

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

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

WAFK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W22 OF 2003

FRENCH J

12 NOVEMBER 2003

PERTH

THE COURT ORDERS THAT:

1.         The appeal is 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.

REASONS FOR JUDGMENT

Introduction

1                     The appellant is an Iranian national who arrived in Australia on 3 November 2000 without lawful authority.  He lodged an application for a protection visa on 1 March 2001 and on 23 March 2001 that application was refused by a delegate of the Minister.  The appellant applied to the Refugee Review Tribunal (‘the Tribunal’) on 26 March 2001 for a review of the delegate’s decision.  On 13 August 2001, the Tribunal affirmed the decision of the delegate.  The appellant applied to this Court for judicial review of that decision and on 22 November 2001 the Court set aside the Tribunal’s decision.  The Court ordered the matter be remitted to the Tribunal differently constituted for reconsideration.

2                     The newly constituted Tribunal, on 14 March 2002, affirmed the decision not to grant the appellant a protection visa.  The appellant again sought judicial review in this Court and the matter was remitted to the Federal Magistrates Court.  On 23 January 2003, Bryant CFM made orders dismissing the application with costs.  The appellant subsequently lodged a notice of appeal against the learned magistrate’s decision and by direction of the Chief Justice that appeal has been heard by a single judge of this Court.

3                     The single issue raised in this appeal arises from the use by the Tribunal of common form text in some sections of its reasons including sections in which it made findings about the credibility of the appellant.  For the reasons that follow, I do not consider that any jurisdictional error is disclosed.  The appeal must therefore be dismissed.

Claims and Evidence

4                     In an interview conducted with an officer of the Department of Immigration on 13 November 2000 the appellant was asked why he had left his country of nationality.  His recorded answer was that there were many reasons.  According to a note of his answer, he  had studied metallurgical engineering at Isfahan University of Technology which he described as a government university.  After graduation he served eighteen months of compulsory military service.  Six months of that was military training and the rest was spent in a defence industry factory.  He said he was recognised as the best design engineer in that establishment.  However, following completion of his military service he was unable to obtain employment.

5                     The appellant’s brother worked for ‘Sepah’ and tried unsuccessfully to get the appellant to join that organisation.  He said his brother had worked for Sepah for over twenty years and had a lot of friends there.  He said members of Sepah would always inform each other of important matters.  The appellant is then recorded as saying that he did not like the Iranian regime and had little contact with his brother in Sepah.  He was warned by his brother that he should leave the country.  His brother told him that if he were to stay he would be unable to do anything for him. 

6                      For one and a half years before he left Iran he had been engaged in labouring work and in a fruit shop and selling cigarettes.  He reached a point where he thought that he would die or commit suicide if he continued to suffer what he described as humiliation by uneducated people because he was educated but working ‘at their level’.  He decided to leave Iran and go overseas to a place where he was regarded as a human being and respected.  He contacted a people smuggler.  The appellant went on to say that Australia is a decent country which respects the value of human beings. 

7                     There was no direct claim of persecution for a Convention reason set out in the note of the appellant’s response to questions at the initial interview. 

8                     In his application for a protection visa the appellant claimed that he had been refused employment after graduation and after completing his military service for three reasons:

1.         He was an Arab;

2.         He did not satisfy ‘ideological’ requirements; and

3.         He had an active record of organising and taking part in gatherings and demonstrations against the regime. 

He also said that when he passed his examination, presumably an entrance examination, for  post graduate studies at Tarbiat Modarres University he was prevented from continuing those studies and was told that the field he wanted to study was confined solely to pro-regime Islamists.  The appellant said he was living in Khozestan Province where Arabs suffered the harshest discrimination and oppression.  He said Arabs could not get any job with the government unless they repudiated their culture and originality. 

9                     Because of the oppressive attitudes of the Iran regime towards Arab people, the appellant complained about discrimination to the head of his tribe, a Shiekh Haj Kamel Halichie.  However the Shiekh warned him from ‘messing with the Islamic Republic’.   The appellant said that in the middle of January 1999 he and four of his university friends, young educated Arabs, went to see Shiekh Halichie.  They protested to him about the situation of Arabs in Khozestan and discussed options for taking a stand against the regime.  They concluded that they had to cooperate with the Mujahideen-e Khalq in order to overcome the regime.  They met with a representative of the Mujahideen at the Shiekh’s house.  They reached an agreement to supply the Mujahideen with 1,500 people to take part in an uprising if the Mujahideen decided to support them.  About a month later the Mujahideen informed the appellant and his companions that it wanted them to carry out propaganda activities for the organisation.  They would then be evaluated and it would be decided what role they would take within the organisation.  The appellant said he and his friends agreed to do that because they wanted to demonstrate their ability and good intentions and at the same time to get some experience with the Mujahideen. 

10                  The appellant said that they carried out propaganda activities for about five to six months from the beginning of 2000.  They received and distributed manifestos prepared by the Mujahideen. 

11                  One day when the appellant had finished distributing manifestos he said his brother came to him and told him that he had been recognised by Sepah and had to flee very soon.  His brother was a Colonel in Sepah. 

12                  Although the appellant was concerned about a black list at the airport his brother told him that it took three days after a person came to the notice of Ettelaat to report the person to the airport for black listing. In the event, the appellant left Iran at the beginning of September 2000.

13                  He said he had not disclosed his full story at the first interview as he did not have a lawyer to give him advice and was not sure of the rules within which he was operating.  He said that if he were to return to Iran he would be arrested upon arrival and would be interrogated and sent to court for trial.

14                  Further questioning and elaboration of these claims was reflected in an interview of 3 March 2001 conducted with the appellant, a general submission on the situation in Iran on his behalf made by his advisor on 5 March 2001 and a statement to the Tribunal provided on 24 May 2001.  This was followed up by oral evidence at the first Tribunal hearing on 25 May 2001 and an additional submission from his advisor by telephone and facsimile correcting certain dates provided in the earlier written submission. 

15                  In support of the appellant’s claims a copy of a letter from the Ahwazian Arab People’s Democratic Popular Front of London was submitted confirming that he was a supporter of the organisation and had been persecuted by the Iran regime.  The letter said that all the Arab people are suffering from racism.  It was dated 23 May 2001.  A further submission was made to the Tribunal dated 7 August 2001 in response to a letter issued to the appellant on 1 August 2001 pursuant to s 424A of the Migration Act 1958 (Cth). 

16                  At the second Tribunal hearing the appellant gave oral evidence on 23 January. 

The Second Tribunal’s Decision

17                  The second Tribunal made reference to the appellant’s various claims and evidence beginning with his first post-arrival interview.  It also referred to independent information about Arab separatism in Ahwaz and the Mujahideen-e Khalq.  It considered information about the position of Arabs in Iran and evidence from the Department of Foreign Affairs and Trade that the act of applying for asylum abroad is not of itself an offence in Iran. 

18                  In the Findings and Reasons section of its Reasons for Decision the Tribunal accepted that the appellant was an Iranian national of Arab ethnicity.  While it accepted some aspects of the appellant’s evidence it was of the view that other aspects were internally inconsistent, inconsistent with independent information before the Tribunal and implausible.  The Tribunal was of the opinion that overall the appellant’s evidence was not reliable.  It considered that some aspects of the appellant’s claims had been fabricated in order to create for himself the profile of a refugee.

19                  The Tribunal referred to the appellant’s claim that he had departed Iran through Mehrabad airport legally, with the help of his brother, on an Iranian passport which he had no problem in obtaining.  It noted his claim that he no longer had the passport and had given it to a people smuggler in Indonesia.  The Tribunal referred to a number of documents held by the appellant’s brother in Iran including his national identification, his driver’s licence, his university degree, his military service card and his certificate of employment.  None of these had been produced.  At par 104 of its reasons, the Tribunal said:

‘I note that the Delegate, in his decision record, made a finding that the applicant was an Iranian citizen, but made no findings about the applicant’s identity.  I also note that, while the previous Tribunal member, in her decision record, was satisfied that the applicant was an Iranian national and an ethnic Arab, she made no specific findings about the applicant’s identity.  In light of this evidence, I am not satisfied that the applicant is who he claims to be.’

This paragraph seems to suggest that the findings of the delegate and of the previous Tribunal member somehow amounted to evidence.  However no point is made of that in this appeal.

20                  The Tribunal went on to say that it was unable to accept the appellant’s claims that he was denied employment in his field, or discriminated against and oppressed by the Iranian government on account of his Arab ethnicity.  It did not accept that he was politically active at university for Arab rights nor that he was a member or, or associated with, an Arab separatist organisation connected with the MKO. 

21                  The Tribunal referred to what it called the ‘major discrepancy’ between the information provided by the appellant on arrival in Australia and his later claims.  He had been advised that the arrival interview was his opportunity to provide reasons why he should not be removed from Australia.  He had been warned that if he said something different at a later interview this could give rise to doubts about the reliability of what he said.

22                  The Tribunal did not accept that any of the reasons given by the appellant for the discrepancy could satisfactorily explain why he would fail to mention such major factors as his conduct of political activities for Arab rights at university, being a member of, or associated with, an Arab political organisation and with the MKO.  In the event, the Tribunal felt unable to accept that the appellant was ever involved in political activities in Iran as he had claimed.  His evidence concerning his political activities was problematic because it was inconsistent with independent information before the Tribunal.  The Tribunal was not satisfied that he was actively involved with the MKO or that he had been involved in any political activities at all against the Iran regime.  It was not satisfied that he was of any interest to the Iranian authorities for that reason.

23                  The Tribunal accepted that many Arabs in Iran live in economically deprived conditions but found nothing in the evidence to suggest that this was true of the appellant or his family.  Indeed his evidence suggested that his family was relatively prosperous and that various members of it had gainful and influential employment.  Even if he or his family were economically deprived it would not follow that this would amount to persecution or that they had a well-founded fear of persecution for a Convention reason.

24                  The Tribunal found that the appellant left Iran legally using his own passport which he subsequently destroyed or gave to a smuggler in Indonesia.  He could request the Iranian Embassy to issue him with a replacement travel document and there was no evidence before the Tribunal to suggest that making such a request would give rise to a well-founded fear of persecution for a Convention reason.

The Decision of the Federal Magistrates Court

25                  The learned Chief Magistrate reviewed the Tribunal’s decision.  The appellant represented himself in the Magistrate’s Court.  The learned Chief Magistrate characterised his main contention thus:

‘The Applicant’s main contentions were that it was unreasonable for the Tribunal to rely upon previous inconsistent answers to questions, and failure to answer questions satisfactorily, and should have re-asked the questions itself and given the opportunity to the Applicant to answer (again).  The submission implies that no account of previous answers would be taken.’

26                  The appellant also contended that the Tribunal questioned the existence of the Arab organisation AAPDPF.  Her Honour pointed out however, that the Tribunal accepted the existence of such an organisation but was not satisfied that it was currently active within Iran and said that the letter relied upon by the appellant did not advance any evidence to support his contention that he was involved in political activities in Iran. 

27                  Her Honour referred to the decision of the Full Court of the Federal Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449.  At the time she gave her decision the High Court had not delivered its judgment on the effect of the privative clause, s 474 of the Migration Act, in Plaintiff S157/2000 v Commonwealth of Australia (2003) 195 ALR 24.  She characterised the appellant’s complaints as going to the merits of the Tribunal’s decision and in particular its findings of fact.  She said:

‘Given the various opportunities the Applicant had to explain his position I am far from convinced that he was not given an opportunity to do so by the Tribunal or that the Tribunal had any obligation to act as inquisitor.  More importantly, no argument is advanced or articulated which suggests that the three Hickman conditions were not satisfied or that the alleged failure on the part of the Tribunal constituted an infringement of an inviolable condition, jurisdictional factor or structural element found in the Migration Act.  There is nothing to suggest that the Tribunal was not attempting to carry out its functions in a bona fide manner.  Thus the appeal must be dismissed.’

The Grounds of Appeal

28                  The grounds of appeal set out in the amended notice of appeal are:

‘1.        The applicant has fear of persecution for his political opinion which is well-founded and will be carried out by Iranian extremist government if he returns to Iran.

2.         The learned primary Magistrate erred in finding that there was no reviewable error made by the Tribunal in its decision of 14 March 2002 (N01/40917).

            Whereas:

            A.         The Learned Primary Magistrate ought to have found that the Tribunal made reviewable errors in that the Tribunal did not give any consideration, or any proper consideration, to the country information which was before it.

Particulars

            i)          As set out in the appellant’s outline of submissions dated 30 September 2003 and filed herein, the Tribunal rather than considering the country information before it, simply copied passages from earlier Tribunal decisions.

            ii)         If the Tribunal had considered the country information before it, it was open to it to find facts which supported the appellant’s claims.

            B.         The Tribunal did not make its own findings about parts of the appellant’s claims in that significant matters in its “Findings and Reasons” were copied from earlier Tribunal decisions not concerning the appellant.

Particulars

                        The copied passages from other Tribunal decisions have been identified in the appellant’s submissions dated 30 September 2003 and filed herein.’

29                  The first ground was a reproduction of what appeared in the appellant’s original handwritten notice of appeal which was evidently prepared without the benefit of legal advice.  Argument on the appeal related to the second ground which had not been raised before the learned Chief Magistrate.  No objection was taken by counsel for the Minister to the amendment of the notice of appeal on that or any other basis.

Whether the Tribunal Erred

30                  In submissions on behalf of the appellant, his counsel, Mr Howard, identified places in the Tribunal’s reasons where it specifically referred to ‘independent information’ under the headings:

(a)        Arab separatism in Ahwaz

(b)        Mujahideen-e Khalq

(c)        Arabs in Iran

(d)        Applying for refugee status

It referred to the independent information on those issues in connection with its findings that: 

(a)        the appellant was not credible when his evidence was compared with the independent information before the Tribunal;

(b)        the appellant’s evidence of his political activities was inconsistent with the independent information;

(c)        the Arab Peoples Movement was not active in Iran;

(d)        there was no independent information that the regime was trying to stamp out Arabian culture.

31                  Counsel submitted that the overwhelming majority of the ‘independent information’ which the Tribunal set out in its reasons was copied (generally word for word) from previous Tribunal decisions.  Counsel then set out a table of the paragraphs in the Tribunal’s reasons cross-referenced to passages in other Tribunal decisions from which it was said the Tribunal copied its own reasons.  The table so produced, it was submitted, made clear that the Tribunal did not consider, or properly consider, the country information for itself. 

32                  The part of the Tribunal’s reasons headed ‘INDEPENDENT INFORMATION’ canvasses so called ‘country information’ emanating from third party sources and relevant to the appellant’s claims.  The adjective ‘INDEPENDENT’ on one view imports a judgment about the material referred to.  On another view, which I think is the better view, it is just a designation consistent with  Tribunal practice, of information about the country from which an applicant has come which information is not particular to the applicant and which emanates from third party sources.

33                  The ‘INDEPENDENT INFORMATION’ section of the Tribunal’s reasons contained four subheadings:

1.         Arab separatism in Ahwaz – comprising pars 84 to 86 of the Tribunal’s reasons.

2.         Mujahideen-e Khalq (MKO, MEK or PMOI) – comprising pars 87 to 90.

3.         Arabs in Iran – comprising pars 91 to 96.

4.         Applying for refugee status – comprising par 97.

34                  Paragraphs 84 to 86 appearing under the first subheading ‘Arab Separatism in Ahwaz’ were word for word the same as three paragraphs appearing under that heading in a decision given by Tribunal Member Rosser on 15 June 2001. 

35                  Under the second subheading dealing with the Mujahideen-e Khalq, par 89 sets out in a number of subsequent quoted paragraphs an extract from the Department of Foreign Affairs and Trade’s Country Profile for Use in Refugee Determination: Islamic Republic of Iran (March 1996).  Some elements of that quotation appeared in the earlier Tribunal decision.  However nothing turned on that point as the Tribunal in the present case simply set out a fuller quotation from the DFAT document. 

36                  Under the heading ‘Arabs in Iran’, paragraph 91 reproduced a quotation from the 1996 DFAT document which was also used, with the same introductory words, by Member Rosser in a decision given on 24 May 2000.  The same is true of pars 92, 93, 94 and 95.  Paragraph 96 of the Tribunal’s reasons in the present case said:

‘There is no indication in any of the United States Department of State’s Country Reports on Human Rights Practices to which I have access (those published over the past seven years) that Arab Iranian groups or individuals are agitating for independence, or that they face serious discrimination or persecution in Iran.’

Save for the reference to ‘serious discrimination’ this paragraph is word for word the same as a portion of a paragraph appearing in a decision given by Member Rosser’s on 24 May 2000. 

37                  It was submitted that this coincidence of text made it clear that the Tribunal did not consider, or properly consider, the country information for itself.

38                  The coincidence in the text, so far as it related to independent country information, does not support the inference that the Tribunal took its text from the particular earlier Tribunal decisions which were referred to by counsel.  It may be that in similar cases, eg cases involving persons of Arab ethnicity coming from Iran, there will be a good deal of commonality in the independent country information referred to by various tribunals and that similar citations will be made.  It may be the case that Tribunal members are using similar surveys of relevant country information in similar cases and adopting a ‘cut and paste’ technique to incorporate those in their judgments.  This does not, in my opinion, demonstrate, as a matter of fact, that a tribunal so doing fails to consider the country information for itself.  In the case under appeal I do not consider that, even if a cut and paste technique were adopted, as seems likely, that this is indicative of a failure by the Tribunal to carry out its statutory function.  No doubt it could be said that at par 96 of its reasons the Tribunal goes beyond the mere recitation of independent country information to a conclusionary statement which is word for word the same as a conclusionary statement made in another Tribunal decision involving a person of Arab ethnicity from Iran.  While I think it would be preferable for Tribunal members in drafting their reasons to express their conclusions in their own words rather than those of another decision by another member, failure to do so does not indicate that the Tribunal member has not applied his or her mind to the facts or that the Tribunal member does not in fact hold the view expressed in the reasons given.

39                  Counsel for the appellant also submitted that the Tribunal disregarded portions of the country information to which it referred in its reasons which portions were supportive of the appellant’s case.  There was a quotation at par 85 from a Report of the Canadian Immigration and Refugee Board’s Research Directorate of May 1998.  The quoted portion of the Report referred to ‘… a very small and politically unimportant group of Iranian exiles, most of whom live in the Netherlands and Germany, who call themselves the Arab People’s Movement…’.  The quotation also referred to the execution of some members of the Arab Peoples Movement in 1987 and stated:

‘Since that time they have carried out no activities inside Iran that the representative is aware of (28 May 1998).’

The full Report included the additional words:

‘Moreover, the Research Directorate was informed by a professor of political science and specialist in Iran at Spring Hill College that although the professor has not heard of an organization called the Arab People’s Movement, there are some underground organizations of Iranians of Arab origin in the province of Khuzestan that have conducted low-level campaigns against the Iran government for years.  These groups come and go and change their names quite regularly… these organizations are very insignificant.’

40                  Then in relation to par 96 of the Tribunal’s reasons, which has already been quoted, it is said that the US Department of State Country Report on Human Rights Practices for the years referred to in that paragraph included statements supportive of the appellant’s claims.  Copies of the relevant Reports were annexed to the submissions and referred to without objection.  The Department of State Country Report on Human Rights Practices for 2000 dated February 23, 2001 included the following statements:

‘The Government discriminates against religious and ethnic minorities…’

and:

‘The Government does not use forced exile, but many dissidents and ethnic and religious minorities leave the country due to a perception of threat from the Government.’

A further passage refers to the restrictions on the press and includes among ‘generally prohibited topics’ the following:

‘… advocating rights for autonomy for ethnic minorities.’

Earlier Year Reports from the Department of State in relation to Iran contain similar statements.

41                  The omission by the Tribunal of reference to those statements does not of itself indicate a failure to consider the evidence.  The statements omitted are of a general character which would seem to have had little, if any, bearing upon the assessment of the appellant’s claims.  In any event an invitation to review the Tribunal’s decision by reference to these omissions is an invitation to merits review.  The omissions do not, in my opinion, support a conclusion that the Tribunal has failed to carry out its function in such a way as to amount to jurisdictional error. 

42                  Counsel then turned to the Findings and Reasons section of the Tribunal’s decision in respect of which it was again said that it had copied passages used in earlier Tribunal decisions on unrelated matters.  The earlier Tribunal decisions referred to were those of Member Rosser given on 24 May 2000 in RRT reference N00/36210 and on 15 June 2001 in RRT reference N01/38230.  The relevant paragraphs in the Tribunal’s decision in this case were pars 98, 99, 100, 101, 109, part 111, 113, 114, 121 and 122.  There is no doubt that as between the earlier decisions referred to and the paragraphs mentioned common form text was used by the Tribunal.  However it was adapted in parts to reflect the particular claims made by the appellant. 

43                  Paragraph 98 of the Tribunal’s reasons stated:

‘The applicant claims that if he returns to Iran, he will be persecuted because he is of Arab ethnicity, because he has been involved in political activities in support of Arab rights and because he is an undocumented asylum seeker.  In assessing the applicant’s Convention claims, I am required to determine whether he has a well-founded fear, and if so, whether what he fears amounts to persecution for a Convention reason.’

44                  In the 24 May 2000 decision of Member Rosser a paragraph appeared in the following terms:

‘The applicant claims that if he returns to Iran, he will be persecuted because he is of Arab ethnicity because he has been involved in political activities in support of Arab rights.  In assessing the applicant’s Convention claims, I am required to determine whether he has a well-founded fear and if so whether what he fears amounts to persecution for a Convention reason.’

The corresponding paragraph in the Tribunal’s reasons sets out  in common form the nature of the claim but adds a reference to the appellant’s claim based upon his status as ‘an undocumented asylum seeker’. 

45                  Paragraph 99 sets out in common form the Tribunal’s approach to credibility as does par 100 and the text of that paragraph can also be found in Member Rosser’s decision of 24 May 2000.  The Tribunal however is a high volume decision-making body.  In stating its approach in general terms to the assessment of the credibility of an applicant, reviewable error is not disclosed by the use of common form text. 

46                  The objection in this case runs further.  It is said that, in its specific findings as to the appellant’s credibility, the Tribunal again used common form text.  So par 101 states:

‘I accept that the applicant is an Iranian national and that he is of Arab ethnicity.  While I accept some aspect of the applicant’s evidence, I am of the view that other aspects of his evidence were internally inconsistent, inconsistent with independent information before me and implausible.  I consider that overall the applicant’s evidence was not reliable.  I am of the view that he fabricated some aspects of his claims in an attempt to create for himself the profile of a refugee.’

In this case the text of the paragraph after the first sentence relating to Iranian nationality and Arab ethnicity, followed word for word a portion of the text set out in Member Rosser’s decision of 24 May 2000 albeit the words ‘and implausible’ were added.

47                  Paragraph 109 dealt, in general terms, with the reasons that asylum seekers might be reluctant to disclose full details of their claims on arrival in Australia.  Given the high incidence of discrepancies between initial interviews and subsequent claims made by asylum seekers it is not surprising that the Tribunal should adopt a common form text setting out its approach to the assessment of such discrepancies.  So in par 109 it was said:

‘I accept that for a variety of reasons asylum seekers may be reluctant to disclose full details of their claims on arrival in Australia.  This reluctance may arise from the asylum seeker’s previous experiences with the authorities in their own country, their concern about being sent back to where they came from, or distress and anxiety in relation to the situation they find themselves in.  In some cases, they may have been given specific instructions about what they should and should not say on arrival in Australia.  I accept that reluctance to provide full details of claims is, in many cases, quite understandable.  In addition, the record of interview may be inaccurate for a variety of reasons, including interpreting errors.  Accordingly, it may be, at times, inappropriate to place weight on the record of the interview.’

48                  In my opinion although that paragraph follows word for word a common form, there can again be no objection going to jurisdiction to the adoption of that device in the preparation of the Tribunal’s reasons.

49                  In par 111, the last section of the paragraph read as follows:

‘The applicant claimed to be a well educated man apparently from a fairly affluent background.  There was nothing in the way that he gave evidence before the Tribunal to suggest that he is naïve or in any way deficient in understanding.  Nor is there anything in the way he gave evidence to suggest he is easily intimidated, subject to other’s opinions or to rumours.’

This piece of text bears a strong resemblance to a portion of the reasons in Member Rosser’s decision of 15 June 2001 where it was said:

‘The applicant is a well-educated man apparently from a fairly affluent background.  In addition to Persian and Arabic, he understands and speaks reasonably good English.  There was nothing in the way he gave evidence before the Tribunal to suggest that he is naïve or in any way deficient in understanding.  Nor was there anything in the way he gave evidence to suggest that he is easily intimidated.’

The reference in the present Tribunal’s reasons to the opinions of others or rumours relates to a claim by the appellant, mentioned in par 52 of the Tribunal’s reasons, that there were rumours that following Khatami’s election as President of Iran a close Iran/Australia relationship had developed and that Australian authorities would check information with Iran.  There were also rumours that Australia disliked Iranian refugees. 

50                  As can be seen, although there is a significant common form component in the text of this paragraph, the Tribunal does appear to have related its findings to specific claims advanced by the appellant. 

51                  In par 113 there was another common form statement about inconsistency between the appellant’s evidence concerning his political activities and the independent information.  This, however, was a conclusion based upon country information and again it is not surprising that the Tribunal would, from one decision to the next, express its conclusions about country information in similar terms in similar cases.  The fact that it might apply a common form text to express that conclusion does not, in my opinion, indicate that it has failed to consider the claims made or that it has failed to carry out its task.  The same is true of the text of pars 114, 121 and 122.  It is notable in par 121 that the Tribunal sets out, not in common form, express references to the particular claims advanced by the appellant.

52                  It appears clear that the Tribunal has borrowed from the text of earlier Tribunal decisions or from some common source which is used in cases of this kind.  While each case must turn upon its own circumstances, I am not satisfied that the mere fact of the use of common form text in relation to statements of general principle, general conclusions about country information and even findings of credibility in similar cases is necessarily indicative of jurisdictional error.  It is, of course, in the latter area, that is to say findings of credibility in the particular case, that the Tribunal should be at pains to make it clear that it has given careful consideration to the detail of the application which it is required by the Act to review.  I do not consider that resort by the Tribunal to common form texts for the purpose of findings of credibility in respect of a particular applicant is desirable.  However, in this case the use of that text was sufficiently modified by reference to the particular circumstances of the appellant’s claims to indicate that the Tribunal was giving consideration to the appellant’s case.

Conclusion

53                  For the preceding reasons, the appeal must be dismissed with costs. In so doing I express my appreciation to Mr Howard who has carefully and comprehensively argued the case on a pro bono basis.

Associate:

Dated:              12 November 2003