FEDERAL COURT OF AUSTRALIA

WAJY v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 355

MIGRATION – application under s 39B Judiciary Act 1903 (Cth) – application for judicial review of decision of Refugee Review Tribunal affirming decision not to grant protection visas – where Tribunal decision result of matter being remitted by Full Court for redetermination – where previous Tribunal had accepted many claims of applicant – where substance to the criticism that Tribunal approached applicant's claims with a negative assumption precluding the Tribunal from going on to look fairly at the particulars of the evidence – where applicant not alerted that Tribunal believed and would find collusion and rehearsing of evidence between applicant and applicant wife – where Tribunal should have made this clear to applicant

Judiciary Act 1903 (Cth) s 39B

Applicant S20/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 referred to

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 cited

Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 referred to

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 followed

WAJY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W 104 of 2003

MOORE J

31 MARCH 2004

SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1.         A writ of certiorari issue to remove to this Court and quash the decision of the Refugee Review Tribunal of 5 May 2003.

2.         A writ of mandamus issue directing the Tribunal to determine according to law the applicant's application for a protection visa.

3.         The respondent pay the applicant’s costs.

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

REASONS FOR JUDGMENT

INTRODUCTION

1                     This is an application under section 39B of the Judiciary Act 1903 (Cth) for judicial review of a decision of the Refugee Review Tribunal made on 5 May 2003 ("the second Tribunal decision") affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") not to grant the applicant a protection visa. 

PROCEDURAL HISTORY

2                     The processing of the applicant's claim for a protection visa has a lengthy history. The applicant arrived in Australia on 2 November 2000 with his wife and two children.  On 12 November 2000 he applied for a protection visa.  His wife and children were included in that application.  I will refer to the applicant in these proceedings as the applicant for the visa unless it is necessary to refer to members of his immediate family.  The delegate refused to grant the applicant a temporary protection visa on 7 December 2000. The applicant applied to the Tribunal for review of that decision.  On 20 February 2001, the Tribunal affirmed the delegate’s decision to refuse the applicants temporary protection visas ("the first Tribunal" and "the first Tribunal decision" respectively).  The applicant sought judicial review of the first Tribunal decision in this Court.  Emmett J dismissed that application on 31 July 2001.  The applicant appealed against his Honour’s judgment.  On 6 December 2002, a Full Court of this Court set aside the orders of Emmett J and remitted the matter to the Tribunal for redetermination.  The Tribunal, differently constituted ("the second Tribunal"), made the second Tribunal decision affirming the delegate’s decision.  The applicant now seeks judicial review of that decision.  Only the applicant (and not members of his immediate family) made specific claims under the Refugees Convention. 

BACKGROUND

3                     The applicant is a citizen of Iran and was, whilst in Iran, a Shi’a Muslim (although he and his wife have now been baptized as Christians).  He is of Turkish (Tabriz) ethnicity.  He left Iran with his wife and two children, then aged 14 and 7, in May 2000, travelling to Australia via Malaysia and Indonesia.  Since arriving in Australia in November 2000 they have been in immigration detention.  The following is a brief summary of the applicant's claims in support of his application for a protection visa.

4                     The applicant has three brothers (all of whom live in Tehran) and one sister who has lived in England since leaving Iran in 1995. The applicant claimed that his sister was a member of the Mujahadeen-e Khalq ("MKO").  He did not claim that he was a member himself.  The applicant was a bus driver between 1983 and 1991 and claimed to have assisted his sister by transporting parcels and MKO pamphlets for her on a number of occasions during this time.  Between 1991 and 1995 he claimed to have driven his sister in his own car to appointments related to her activities in the MKO.  The applicant claimed that following his sister’s departure, his car was vandalised and accusations that they were MKO members were scratched onto it.  He also claimed that his father had been persecuted following his sister’s departure from Iran.

5                     The applicant claimed to have been arrested and detained for a week in September 1999, during which he was beaten and questioned, leaving some teeth broken and his feet wounded. The applicant claimed that a month after his release he received the first of three letters requiring him to attend court.  He claimed to have received a second and third letter the following year.  He claimed that the third letter had said that if he did not appear, a warrant for his arrest would issue.  He claimed to have lost the letters when he first attempted to come to Australia and the boat capsized.

The second Tribunal decision

6                     The first Tribunal accepted most, but not all, of the claims of the applicant.  The first Tribunal accepted the applicant's claims concerning his sister's activities and his involvement in them.  It accepted that he had been arrested, detained and mistreated. The second Tribunal reached quite different conclusions and, in substance, rejected most of what the applicant claimed had occurred to him in the years leading to his departure from Iran.

7                     The second Tribunal decision took the following form.  The second Tribunal set out what appears to be a standard discussion of the legislation and the law concerning who is a refugee.  It then recorded what material it had concerning the applicant's application.  It noted the applicant, the applicant's wife and the applicant's sister gave evidence to the second Tribunal.  It then set out the claims of the applicant made at various points during the processing of his application.  The second Tribunal did so either by repeating a summary in the first Tribunal decision or summarising the claims themselves as made at various points in the process.  The second Tribunal repeated the first Tribunal's summary of the arrival interview and the hearing before the first Tribunal.  The second Tribunal summarised itself the claims made in the application for the protection visa, in the departmental interview and at the hearing before the second Tribunal.  The second Tribunal then set out independent information concerning the MKO, the circumstances of Christian converts in Iran, the consequences of illegally departing Iran and of applying for asylum abroad.

8                       The second Tribunal prefaced its findings and reasons by noting its view that significant aspects of the applicant’s evidence were confused, internally inconsistent and inherently implausible.  The Tribunal said it had concluded that the applicant had fabricated his claims in an attempt to create for himself the profile of a refugee.  The Tribunal also said it did not consider the applicant, his wife or his sister, credible or reliable witnesses.

9                     The second Tribunal's reasoning was, in summary, as follows (I will set out extracts from its reasons later in this judgment).  The second Tribunal found the applicant’s claim to have been involved in MKO activities over a lengthy period of time inconsistent with other aspects of his evidence.  It considered the applicant had changed his evidence in relation to the time frame in which he had been involved with the MKO and had not offered an explanation.  The second Tribunal considered that if the applicant had been involved in assisting the MKO over the twelve years as claimed, he would have known more than he did about the organisation. 

10                  The second Tribunal considered it inherently implausible that the applicant would have been arrested because he was suspected of involvement in the MKO through a connection with his sister four years after his sister had left Iran.  The second Tribunal concluded the applicant had offered inconsistent evidence about his sister’s co-workers and when and whether they had exposed him and his sister.  The second Tribunal found it illogical that if the applicant’s sister’s involvement with the MKO was as widely known after her departure as he claimed, he would not have been detained until 1999.  Also, the applicant offered inconsistent reasons for his release from detention.

11                  The second Tribunal pointed out that the applicant had never mentioned his sister’s claim that her husband threatened to inform on the applicant and that she had told the applicant so in 2000.  The second Tribunal concluded the applicant’s evidence concerning his involvement with the MKO and his detention was not credible.

12                  The second Tribunal went on to say:

Individually, the matters I have set out above might not be particularly significant, but taken together I am led to conclude that the applicant’s evidence concerning his involvement with the MKO and his detention for this reason is not credible.  I therefore reject the applicant’s claim that he was involved in distributing MKO materials, or in otherwise assisting his sister in MKO activities.  Furthermore, I do not accept that the applicant was suspected of involvement with the MKO.  As I do not accept that the applicant was involved in distributing MKO materials or suspected of involvement with the MKO either on his own account or through his sister, I do not accept that he was detained for this reason.  I am of the view that the applicant fabricated these claims in an attempt to create for himself the profile of a refugee.  As I do not accept that the applicant was detained for because of any actual or suspected connection to the MKO, I do not accept that any physical damage the applicant has suffered (damaged teeth, for example) were caused in the manner and for the reasons he claims.

13                  The second Tribunal then considered other aspects of the applicant’s evidence.  It did not accept that the applicant was sent any summons requiring his attendance at the Revolutionary Court.  The applicant had ventured two reasons why people are normally sent such summonses.  The second Tribunal viewed them as confused and inconsistent.

14                  While the second Tribunal accepted that the applicant’s sister had been accepted as a refugee in the UK because she claimed to have been involved with the MKO, it indicated it had serious doubts about the credibility of her claim.  It said that regardless of whether she had actually ever been active in the MKO, it did not accept that the applicant was in any way active or suspected of involvement in the MKO, either on his own account or through his sister.  It concluded that the applicant’s claim that he was of adverse interest to the Iranian authorities because of a perceived connection with the MKO was a complete fabrication.

15                  The second Tribunal went on to consider further aspects of the claims of the applicant.  It did not view as credible his claim that his property was attacked following his sister’s departure.  The second Tribunal took the view that it was inconceivable that if there had been any suspicion that the applicant was connected to the MKO he would have been subjected to a campaign of harassment "only followed by arrest a number of years later".  The second Tribunal did not accept that he and his family had gone into hiding or that they had left Iran illegally because he was of adverse interest to the Iranian authorities for a reason connected to the MKO.

16                  Because the second Tribunal did not accept that the applicant was involved with the MKO in the past, it did not accept that he would be involved in such activities in the reasonably foreseeable future.  Accordingly, the Tribunal was not satisfied that the applicant had a well founded fear of persecution for the reasons of his actual or imputed political opinion.

17                  The second Tribunal then pointed to the "substantially consistent" evidence of the applicant, his wife and his sister.  This matter will be discussed in more detail later.  The second Tribunal indicated that even if the consistency had helped the applicant, it considered that this would not have overcome the problems with the applicant's own evidence.  The second Tribunal concluded that the applicant left Iran legally on his own passport but, in any event, had he had felt compelled to leave the country illegally, that fact would not, on the independent evidence, have given rise to a well founded fear of persecution for a Convention reason.

18                  The second Tribunal noted the number of unsuccessful Iranian asylum seekers returned to Iran from Australia in recent years and that there had been no reports of such people being detained because they had sought asylum.  Therefore, the second Tribunal was not satisfied that there was a real chance that the applicant would be persecuted in Iran because he had sought refuge in Australia. 

19                  The second Tribunal accepted that the applicant and his wife had been baptised as Christians.  However, it viewed their evidence at the hearing as not demonstrating either a real understanding or a real commitment to Christian beliefs, principles and practices.  The second Tribunal did not consider they were involved in or committed to proseltysing.  It observed that, in any event, independent evidence indicated that Muslim converts to Christianity in Iran are able to practise their religion without risking serious harm.  The second Tribunal was not satisfied that the applicant had a well founded fear of persecution for a Convention reason arising for reasons of religion. 

GROUNDS OF REVIEW AND THE DISPOSITION OF THE APPLICATION

20                  At the hearing, counsel appearing for the applicant was granted leave to file an amended application.  This course was not opposed by counsel for the Minister.  While they are lengthy, it is convenient to set out the grounds and the particulars:

GROUNDS:

5.         The grounds of this application are that the Tribunal's decision involved:

i.                    errors of law;

ii.                  failure by the Tribunal to have proper regard for relevant evidence; and

iii.                denial to the applicant of procedural fairness,

such that the decision is a nullity because of jurisdictional errors:

PARTICULARS

5.1.1        In assessing the level of 'involvement' of the applicant in the organization Mujahideen-e-Khalk  ("MOK") the Tribunal failed to distinguish relevantly between different levels of involvement in that organization and in particular that a person like the applicant could engage in assistance arising from supporting the aims of MOK without having a deep understanding of its ideology, activities and structure.

5.1.2        In considering the plausibility of the fact that it was about four years after the applicant's sister left the country before the applicant was arrested the Tribunal should have, but failed, to address and make findings about the question whether the level of 'involvement' of the applicant in the political activities of MOK, while sufficient to attract some adverse interest in him by Iranian authorities, did not necessarily render him liable to arrest and violent punishment immediately his sister left the country.

5.1.3.1  Affected by this misunderstanding of the applicant's case, the Tribunal wrongly gave a significance to the four year delay between his sister's leaving and his arrest in making its negative findings about the applicant's evidence regarding his assistance to his sister in distributing pamphlets, his arrest and his receipt of letters/summons requiring him to attend the Revolutionary Court, precipitating his decision to leave Iran with his family to avoid further persecution because of his political associations.

5.1.3.2  In similar vein, by reason of failure to differentiate personal from political support, the Tribunal erred in law in making findings that the applicant's evidence was not credible because of his lack of knowledge about MOK.  The Tribunal should have had regard to the fact that the relatively low level of his assistance to his sister could have been motivated by no more than sympathy with an organization that was opposed to the Iranian government without any real appreciation of its ideology.

5.1.3.3  In finding the applicant's evidence accounting for the four year delay was not credible, the Tribunal had regard to independent evidence about high level MOK actions of a terrorist kind and the reactions of Iranian authorities and security agencies that was not relevant and appropriate for assessing the reactions of those authorities to a relatively low level supporter of the kind that the applicant claimed to be.

5.1.3.4  With respect to the Tribunal's finding that the applicant's evidence about his receiving three letters/summons was not credible because a person like the applicant who was of interest to the authorities would probably have been arrested, the Tribunal constituted by a member experienced in Iranian matters failed to take into account independent evidence about the arbitrariness of Iranian arrest/summonsing practices that had been referred to in the Full Court's decision in WAAD v Minister for Immigration & Multicultural Affairs (W 460/2001, [2002] FCAFC 399; 6 December 2002) explicitly concerning the applicant's situation.

5.1.3.5  The failure of the Tribunal to differentiate between the degrees to which Iranian authorities could take an adverse interest in the applicant's prior association with his sister's involvement and the possibility that he could lead them to other persons still involved in MOK, affected its conclusion about the applicant not having a basis for a real fear of persecution if he returned.  The fact that he was not merely a relative of someone who had fled the country but had involvement and possible information about MOK arising from his distribution activities was a relevant factor that should have affected the Tribunal's consideration of his claim.

5.1.3.6  Given:

a)      the centrality of his claim that he had attracted persecution on political grounds by being suspected of facilitating his sister's activities for MOK, and

b)      the objective fact that British authorities had accepted her as entitled to protection based on her claims relating to her association with the MOK, the Tribunal erred in failing to make a definitive finding regarding that the correctness of the British assessment, since it provided strong corroborative support for his claim.

5.1.3.7  The Tribunal's finding relating to the applicant's credibility was further affected by the view it took about the likelihood that the applicant and his wife, despite a separation order, had colluded in giving similar evidence.  Since this was a factor in the Tribunal disregarding strong corroborative evidence that would have supported the applicant's claim, the Tribunal erred in acting on speculation without having any independent support for its supposition.

5.1.3.8  Further, the Tribunal acted contrary to the requirements of procedural fairness in not directly addressing the issue of the applicant's possible collusion with his wife as a discreet issue.  It should have sought evidence from the applicant or provided him with an opportunity to provide independent evidence of his compliance with the separation order.

5.1.3.9  The Tribunal further erred in concluding the applicant was not credible by failing to address the latter's claim that, having a reasonable job and situation in Iran, it was unlikely that he would have risked the hazards of flight to himself and his family unless he had a real fear of continuing persecution.

5.2       The errors and failures set forth above adversely affected the Tribunal's assessment of the applicant's credibility and disabled it from making a proper decision regarding his and his family's entitlement to a protection visa.  If it had properly understood the applicant's case, and had regard to independent and credible corroborative evidence it was open to it to find that the applicant has a well founded fear of persecution if he returned to Iran because of his past political associations with the MOK.

21                  What many of these particulars concerned can be encapsulated in a submission made orally by counsel for the applicant.  It was submitted that, unlike the circumstances discussed by the High Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222 and Applicant S20/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59, the second Tribunal had, in relation to each significant aspect of the applicant's claims, approached the applicant's evidence (and any evidence supporting it) with a negative assumption (that the evidence was suspect or should be rejected) which precluded the second Tribunal going on to look fairly at the particulars of the evidence.  For my part, I think there is substance to this criticism but its legal consequences are another matter.

22                  These criticisms can be illustrated by referring to several passages in the second Tribunal's decision leading to its rejection of what was central to the applicant's claims, namely that he had assisted his sister in distributing MKO materials and otherwise assisted her in MKO activities.  The rejection is in the passage from the second Tribunal's decision set out at [12] above.  The second Tribunal identified, in effect, five matters which led it to reject the central claim.  It commenced its discussion of those matters by saying:

I accept that the applicant is an Iranian national.  However, in my view, significant aspects of the applicant's evidence were confused, internally inconsistent, inconsistent with the independent evidence and inherently implausible.  I am of the view that the applicant has fabricated his claims to refugee status in an attempt to create for himself the profile of a refugee.  I am of the view that the applicant, the applicant wife and [his sister] have rehearsed aspects of their evidence.  I do not consider any of them to be credible or reliable witnesses.

23                  The first of the five matters concerned that time at which the applicant first said he helped his sister in the period 1991 to 1995.  As to this matter the second Tribunal said:

Firstly, the applicant's evidence in relation to his and his sister's involvement with the MKO was internally inconsistent in various ways.  For example, in his application for a protection visa the applicant claimed that his activities with the MKO had ceased in 1991 when he stopped working as a bus driver.  The applicant has since claimed that he continued to be involved with the MKO until his sister left Iran in 1995.  The applicant has not provided any satisfactory explanation for his failure to mention his continued involvement with the MKO in his application for a protection visa.  At the hearing, the applicant indicated that he had told the delegate and the Tribunal as previously constituted about his involvement after 1991.  In my view, this does not constitute an explanation for the applicant's failure to make this claim in his application for a protection visa.

It is true that all the applicant said in a typed statement accompanying his application for a protection visa lodged on 12 November 2000 was that "My deliveries for my sister stopped in 1991 when I sold my part ownership of the bus and I started my car dealership" and said nothing about assisting his sister after that time.  However, the applicant had arrived in Australia by boat less than a fortnight before his application was lodged and a Tribunal must exercise care before discarding claims because they had not been raised at the first opportunity: see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 558.  That appeared to be the approach of the first Tribunal which did accept that the applicant had taken his sister different places in his private car between 1991 and 1995.

24                  The second matter leading to the second Tribunal's rejection of the applicant's central claim, concerned his lack of knowledge of the MKO.  The Tribunal said:

Other aspects of the applicant’s evidence concerning his supposed involvement with the MKO are also problematic.  On the applicant’s evidence during the hearing, he was involved in activities supporting the MKO over a period of some twelve years.  However, the applicant could not provide any information concerning the ideology of the organisation other than to say that it opposes the Iranian government.  In my view, if the applicant had been involved in assisting the MKO over a long period, he would know somewhat more about the organisation.

I am not suggesting that the applicant should have an in-depth knowledge of the MKO.  However, the independent evidence indicates that in the period during which applicant claims to have been involved in MKO activities, the Iranian government regarded the MKO as a serious threat.  The MKO had fought against Iran during the Iran / Iraq war and had launched an attack on Iran in 1988.  Measures taken against those suspected of involvement with the MKO were very severe.  In my view, given the independent evidence concerning how MKO supporters were liable to be treated in Iran, it is inherently implausible that a person would have maintained a long-term involvement with the MKO without having some ideological commitment to the organisation.  I am of this view even taking into account the applicant’s claim that his involvement with the MKO was through his sister.  The applicant's total lack of knowledge of the MKO is, in my view, inconsistent with his claim to have been involved in MKO activities over a lengthy period of time.

The difficulty with this analysis, containing as it does references to inherent implausibility and inconsistency, is that the applicant's account was that he had not been a member of MKO and, that he did what he did to assist his sister.  His involvement in MKO activities was, on his account, only ever vicarious.  Presumably for that reason the second Tribunal acknowledged that the applicant might not be expected to have an in-depth knowledge of the MKO.  The statement in the last sentence in the above quotation certainly overstates and probably misstates his claim.

25                  The third matter concerned what the second Tribunal identified as the time between the sister's exposure as a MKO activist in 1995 and the applicant's arrest in 1999.  The second Tribunal said:

Another problematic aspect of the evidence before me relating to the applicant's involvement with the MKO concerns the evidence relating to the applicant's sister's alleged exposure as an MKO operative.   The applicant's sister left Iran in 1995.  During the hearing the applicant initially claimed that his sister had to leave Iran because she had been exposed.  He claimed that some of the people in the MKO with whom she was associated had been arrested, that these people were going to inform on his sister and that one of his sister's co-workers had told her to leave Iran.  However, when I asked the applicant why he had not been arrested until 1999, given that his sister's activities were exposed in 1995, the applicant asserted that those people who were working with his sister had not been exposed for several years.  He stated that they had then been exposed and that they had provided the authorities with information about him.  In my view, the applicant's evidence in this regard is internally inconsistent and illogical.

Other aspects of the applicant's evidence in relation to this issue are also illogical.  According to the applicant, people in the local community were aware of his sister's support of the MKO.  He claimed that after his sister left Iran, his father was arrested and questioned about her, his own car was damaged and spray-painted with slogans when he visited his parents and his parents' house was sprayed with graffiti.  The applicant's evidence suggested that all of this happened because people were aware of his sister's involvement with the MKO.  The applicant also claimed that he was known to have been involved with his sister's activities.  In my view, the applicant's evidence in this regard does not sit well with his claim that he was not detained until 1999.

In my view, if the applicant's sister had been involved with the MKO, if this had been known to the Iranian authorities and if the applicant had also been suspected of involvement in MKO activities, it is inherently implausible that the Iranian authorities would have waited for some four years before detaining and questioning the applicant in relation to this matter.  I am of the view that this is particularly the case in view of the applicant's evidence that local people were aware of the MKO connection (as evidenced by the applicant's claim in relation to the arrest of the applicant's father and attacks on the applicant's and his parents' property).  I note also that on both the applicant's and [the applicant's sister's] evidence, [the applicant's sister] was not involved in any MKO activities whatsoever following her departure from Iran.

In the circumstances, I consider it inherently implausible that the applicant would have been arrested some four years after his sister left Iran because he was suspected of involvement in the MKO through a connection with his sister.  In my view, if the applicant had been suspected of involvement with the MKO – or was otherwise of adverse interest to the authorities because of his sister – he would have been detained at a much earlier time.  (Emphasis added)

26                  However the evidence of the applicant and his sister was not quite as portrayed in this extract.  The differences may be significant.  His evidence was that he was contacted by his sister from England three months after she left Iran and was told she had been exposed.  His evidence about what she said was that some people had been arrested and there was a "one hundred percent possibility that she would be dobbed in by them".  There was thus the possibility that the sister was wrong about her involvement being exposed as it was based on speculation on her part even if it was informed speculation.  The evidence of the sister was that before leaving Iran (and it was the reason for leaving) she had been badly beaten at her home by security guards.  Her evidence was, when asked by the second Tribunal, that her assailants had not accused her of involvement with the MKO.  Her evidence was that she guessed this (her involvement with the MKO) was the reason for the assault.  The possibility that the sister had not been exposed, or exposed in a way that led the authorities to be certain about her MKO activities and her brother's involvement in them, is not accommodated in the second Tribunal's reasoning.

27                  In addition, the second Tribunal's recourse to the notion of "inherent implausibility" appears to me to be misplaced. The first Tribunal accepted that the applicant had been arrested and detained for a week in September 1999.  It did so based on what was essentially the same account later repeated to the second Tribunal.  Even accepting that the second Tribunal was under a duty to consider the matter afresh by reference to all material before it, it appears to me to be an extremely bold conclusion (if not a perverse one) that this aspect of the applicant's claims was "inherently implausible" in two respects in the face of the acceptance of this aspect of his claims by the first Tribunal.

28                  The fourth matter supporting the second Tribunal's rejection of the applicant's central claim concerned the reasons he gave for being released from detention in 1999.  The second Tribunal said:

Yet another problem with the applicant's evidence concerning his alleged detention on suspicion of involvement with the MKO relates to his release.  According to the applicant, he was released after a week.  However, the applicant's evidence concerning the reasons for this were confused and internally inconsistent.  The applicant initially claimed that he was released because the authorities had no documentary evidence of his involvement with the MKO.  However, when I put to the applicant that if the authorities had suspected him of involvement with the MKO, they would hardly have needed documentary evidence of the fact in order to keep in detention, the applicant then claimed that the authorities released him because they wanted him to lead them to other MKO operatives.

29                  This account simply does not reflect what was said.  When first asked by the second Tribunal why the authorities released him without charging him with any offence after seven days, the applicant said "[t]hey have evidence and documents they couldn't do anything to me.  They release me as a bait and follow me and then they find other things to be able to arrest me again.".  The first part of the answer clearly required further exploration and is consistent with an imperfectly translated explanation that the authorities did not have evidence and documents.  The second part of the answer concerned the matter identified by the second Tribunal at the conclusion of the above quote.  The second Tribunal then indicated this answer did not make sense and said "Got any other explanation you care to offer?".  In response to this, the applicant said that after seven days, after they released him they have "all these things that they wanted to do and they planned that they had intentions to work on me and I was quite conscious that I was under their control".  Shortly thereafter he also said that they released him "so they could arrest me with stronger documents, evidence".

30                  The fifth matter concerned the failure of the applicant to mention that he had been told his brother-in-law had threatened to expose him.  The second Tribunal said:

A further problem with the applicant's evidence emerged during the hearing, when [the applicant's sister] gave evidence.  [The applicant's sister] claimed that her husband threatened to inform on her brother when their marriage broke down.  She further claimed that in 2000 she contacted her brother on his mobile phone and told him about this threat.  However, the applicant did not mention this contact with his sister in his arrival interview, in his protection visa application, in his interview with the delegate, at the hearing before the Tribunal as previously constituted or earlier in the hearing when I asked the applicant how the authorities would have known about his involvement with the MKO.  The applicant claims that he did not mention anything about his sister's phone call because he did not take the threat seriously and because by the time his sister phoned him he had already had problems with the authorities.  I do not consider that either of these explanations adequately accounts for the applicant's failure to mention that his brother-in-law had apparently threatened to inform on him and that he had been told about this threat prior to his departure from Iran.  In my view, if the applicant's sister had given him such information, he would have mentioned it at some stage.

31                  The second Tribunal reached this adverse conclusion about the applicant because he said nothing about the threats of the brother-in-law before being asked about it by the second Tribunal and, in particular, had not mentioned it when asked by the second Tribunal how the authorities would have known about his involvement with the MKO.  As to this latter matter, it is not at all obvious to me why it could be expected the applicant would mention this in response to the question of how the authorities knew about his involvement with the MKO.  Threatening disclosure does not result in the authorities knowing anything.  The sister did not say that the threat was given effect to by her husband.  Given that a central feature of his claims was consistently that he was detained for a week and beaten in 1999, it is not unsurprising, in my opinion, that he did not attach particular importance to (and therefore mention) a threat made in 2000 by his brother-in-law to expose him.  Indeed this was the substance of the quite plausible explanation given by the applicant when the second Tribunal asked him why he had not mentioned the threat of disclosure by the brother-in-law earlier.

32                  It was by reference to these matters that the second Tribunal reached the critical conclusion at [12] above (that the applicant had not been involved in distributing MKO material).  The reasoning of the second Tribunal involved, in my opinion, a harsh and overly critical assessment of the evidence of the applicant.  However to say, as counsel for the applicant submitted, that it involved "embedded negative assumptions" which precluded the second Tribunal looking fairly at the particulars of the evidence is either simply a challenge to the findings made or an allegation that the second Tribunal was biased (either apprehended or actually).  But counsel for the applicant eschewed any allegation of bias.  It cannot be said, in my opinion, that the Tribunal failed to undertake a review having regard to the above matters and also other matters referred to in the particulars concerning the way the second Tribunal assessed the applicant's evidence and about which detailed submissions were made.  It did undertake a review in the sense that it referred to, assessed and reached conclusions about all the essential features of the applicant's claims.

33                  However in relation to one issue, I am satisfied that the second Tribunal fell into jurisdictional error.  An important part of the applicant's claims was that he had been detained by the authorities in 1999 for seven days and beaten.  Part of his account of this incident was that he did not tell his wife what had happened when he returned home.  Rather, he told her that he had been injured in a motorcycle accident.  Her evidence about this incident could be important in persuading a decision maker that the incident occurred.  Her evidence addressed the circumstances in which he left the home prior to the detention, the physical state he was in when he returned and what he then said about what had happened to him in explaining his absence.  Unless the wife's evidence was rejected unreservedly then it would provide some support for acceptance of her husband's account of at least this incident.

34                  The second Tribunal dealt with the wife's evidence in the following passage:

I note that the applicant wife's evidence and [the applicant's sister's] evidence was substantially consistent with that provided by the applicant.  Indeed, some aspects of the applicant wife's evidence were in almost identical words to those used by the applicant.  I was left with the impression that notwithstanding the restraining order restricting contact between the applicant and the applicant wife, there was nevertheless some collusion between them and a degree of rehearsing of aspects of their evidence – notably, for example, the evidence that they had been in hiding prior to leaving Iran.  I consider that this would have been fairly easy for the applicant and the applicant wife to achieve with assistance from their children or others in the detention centre.  In any event, I consider that the problems with the applicant's own evidence were such that they could not be overcome by a degree of consistency between the applicant and his wife or his sister.

35                  Counsel for the applicant submitted that the second Tribunal denied the applicant procedural fairness having regard to the way it dealt with this issue.  When the second Tribunal questioned the wife, it did say (after asking the wife about what she knew of the sister-in-law's activities with the MKO and the wife answering she did not know "anything at all") that "[i]t seems to me [the second Tribunal] that the only things that you know are things that you and your husband have discussed, and that you've decided to tell the tribunal".  The applicant was not present when this was said.  The issue of collusion between the applicant and his wife was not raised during his questioning.  However at the conclusion of the hearing there was an exchange between the second Tribunal and the applicant's representative.  It was:

KR:                              OK, Mr Christie, is there anything else in particular that you want me to raise?

Christie:          No, there is nothing further, ma'am obviously the reception is always less than ideal in these circumstances but as far as I could follow it there is nothing further that I want to raise – perhaps you could tell me where we are up to with [the wife's] evidence.  Has that been dealt with and is anything arising out of that?

KR:                  There's nothing particularly adverse.  I get the impression that in spite of the restraining order against [the applicant], that he and his wife may well have discussed things because of the close similarity even in the wording that they used in relation to various matters.  There were some inconsistencies but nothing that I would particularly make adverse findings on.  Now, that doesn't mean that I find either [the applicant] or his wife actually credible…if you understand what I mean?

Christie:          Yes, I think I understand what you mean.

KR:                  Yes, basically she supported him although there were a few inconsistencies…however…

Christie:          Which is bound to happen of course…

KR:                  Which is bound to happen,. So I'm not, that's what I mean, I wouldn't draw any adverse conclusions on the basis of [the wife's], no [the sister’s] evidence.  However I still do have significant problems with the credibility of the claims.

Christie:          Yes, right, um…I would like…I would like seven days in which to make some reasonably brief submissions.

KR:                  No problem.  I will just get the interpreter to go through that with [the applicant].

36                  This exchange would not have alerted Mr Christie to the possibility that the second Tribunal believed (and would make a finding that) there had been collusion between the applicant and his wife and a rehearsing of the evidence (notwithstanding the existence of the restraining order).  A finding of collusion and rehearsing entails a finding that the colluding parties deliberately set about tailoring their evidence so that the evidence of each corresponded, whatever their independent recollection of events was.  Mr Christie was told when he enquired about the wife's evidence, that there was nothing particularly adverse.  Plainly enough, a finding based on that evidence (and that of the applicant) of collusion and rehearsing is an adverse finding of a particularly serious character.  While the Tribunal mentioned similarities in the wording and the possibility of discussion, this fell well short of raising the prospect of a finding of deliberate tailoring of evidence.

37                  In my opinion, it was incumbent on the second Tribunal to make it clear to the applicant and his adviser that it believed there had been collusion and the rehearsing of the evidence and, on that basis, the wife's evidence would be given little or no weight if, as appears may be the case, it had formed that view by the conclusion of the hearing.  If it formed that view later, it should have informed the applicant.  The applicant has given evidence in this hearing about the evidence he would have given to the second Tribunal about the absence of any opportunity to collude and rehearse (because of the restraining order and its enforcement by Australasian Correctional Management at the Curtain Detention Centre where the applicant and his wife were separately detained).

38                  What occurred before the second Tribunal was against a background where the first Tribunal had accepted the applicant's account that he had been detained and beaten in September 1999 and the first Tribunal had noted in its reasons that the applicant's wife had, at an interview shortly after arriving in Australia, corroborated her husband's account of his detention in September 1999.

39                  The Minister's answer to the contention there had been a denial of procedural fairness, was to say that it was apparent from the Tribunal's reasons that it rejected entirely, as fabrications, the applicant's account of his experiences in Iran.  In this respect, it was submitted, this case was similar to that considered by the High Court in Applicant S20/2002 v Minister for Immigration and Multicultural Affairs (supra).  However, that does not constitute, in my opinion, an answer.  In this case, the complaint is that the procedure adopted leading to the conclusion that the applicant had fabricated his account, was tainted by a denial of procedural fairness.  In the circumstances considered by the High Court, the conclusion that the applicant was so lacking in credibility that the corroborative evidence would not assist him, was not itself a conclusion reached by a process tainted by a denial of procedural fairness.  Had the applicant, in the present matter, been alerted to the approach the second Tribunal was minded to take in relation to the wife's evidence, he could have given evidence concerning the opportunity for collusion or rehearsing.  That evidence may have changed the Tribunal's view about the wife's evidence which, in turn, may have influenced its views about the applicant's evidence more generally.  It cannot be assumed that the evidence the applicant might have given about opportunity would make no difference because it would have been rejected out of hand by the second Tribunal: see Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [4] per Gleeson CJ, at [59] and [80] per Gaudron and Gummow JJ, at [104] per McHugh J, at [131] per Kirby J and at [211] per Callinan J.

40                  The applicant has established a ground of review entitling him to relief.  The Minister did not submit that, as a matter of discretion, relief should not be granted.  The second Tribunal's decision should be quashed and the Tribunal should be directed to hear and determine the applicant's application.  The Minister should pay the applicant's costs.

Associate:

Dated:              31 March 2004