FEDERAL COURT OF AUSTRALIA

Applicant A200 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 547

MIGRATION – Protection Visa – fair hearing – failure to afford applicant the opportunity to comment on matters of concern to the Tribunal – misuse of country information – whether Tribunal prejudged issue

Migration Act, 1958 (Cth)

Applicant A v Minister for Immigration & Multicultural Affairs [2001] FCA 1723

WADA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 202

Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476

SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404

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

WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912

Waterford v The Commonwealth (1987) 163 CLR 54

SBBG v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 281

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

SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1315

WAFK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1293

APPLICANT A200 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 854 of 2003

SELWAY J

5 MAY 2004

ADELAIDE

THE COURT ORDERS THAT:

The application be dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant arrived in Australia by boat on 11 November, 2000.  He was an ‘unlawful non citizen’ for the purposes of the Migration Act, 1958 (Cth) (‘the Act’) and was taken into detention.  On 13 November he was interviewed by a Departmental officer (the initial interview). On 27 March 2001 the applicant applied for a protection visa.  In order to obtain such a visa the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’) had to be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol: s 36(2) of the Act. In general terms the Minister had to be satisfied that the applicant was a ‘refugee’ as defined in the Convention being a person who:

‘… owing to a well-founded fear of being persecuted for reason of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.’

2                     That application was considered by a delegate of the Minister who refused it on 19 April 2001.  The applicant sought to have that decision reviewed by the Refugee Review Tribunal (‘the Tribunal’).  On 15 June 2001 the Tribunal confirmed the decision of the delegate.  The applicant sought a review in this Court of that decision pursuant to s 476 of the Act as it then was.  That application was dismissed on 5 December 2001: Applicant A v Minister for Immigration & Multicultural Affairs [2001] FCA 1723.  The applicant appealed from that decision, but his appeal was dismissed on 25 June 2002: WADA v Minister for Immigration & Multicultural Affairs [2002] FCAFC 202 (WADA).  It is clear from that decision that the issues raised by the applicant (who was unrepresented) in those proceedings related to the factual findings by the Tribunal, the adequacy of the translation of his interview with the Tribunal and the alleged failure of the Tribunal to take a statement of a person that the applicant had identified as someone who might assist his case.

3                     The applicant’s claim for a protection visa was summarised by the Full Court in WADA:

‘The appellant claimed to have a well-founded fear of being persecuted if he should return to Iran, by reason of his being an Arab Iranian, with past involvement in a political movement aimed at securing a separate Arab State and promoting Arab language and culture. His claims were stated in some detail in an interview with an immigration inspector on his arrival in Australia, a written application for a protection visa, written submissions in support of the application, a record of interview with an officer of the Department of Immigration and Multicultural Affairs, written submissions in support of his application to the Tribunal and oral evidence to the Tribunal at a hearing on 6 June 2001. The claims are set out in considerable detail in the reasons for decision of the Tribunal. For present purposes, it is not necessary to do more than summarise them.

The appellant was born at Ahwaz in Iran, and lived there until he left Iran in September 2000. He claimed that Arabs are deprived of their rights and cannot practise their customs freely in Iran. They cannot study in Arabic. While he was at University, the appellant wrote articles about Arabs and their violation of rights. He was detained for four days, accused of instigating Arab nationalism and was released after signing an undertaking. In 1997, he became associated with Khalgh Arab, an organisation fighting for the independence of Khuzestan, a province in the south of Iran in which Ahwaz is located. He was arrested in 1998. During his military service, he began organising political activities aimed at achieving social justice and Arab freedom. He and some friends established a group, linked with an Arab activist.

In July 1999, there was a meeting between city authorities and citizens to discuss the problems of Ahwaz. The meeting became unruly. Security forces raided the meeting and arrested the appellant and others. The appellant was detained for ten months, but was released because there were no allegations against him other than trouble-making at the meeting.

The appellant’s group became involved in holding meetings, writing slogans and preparing leaflets and articles. They revealed information about an oil pipe explosion and the confiscation of Arab farmers´ land. They instigated and helped in a strike. They had articles printed in an Ahwaz newspaper about oppression of Khuzestan Arabs. In 2000, they began a campaign against confiscation of Arab farmers´ lands for the building of a power station. This led to a blockade of the site. That night the appellant was at a meeting in a house, which was raided by authorities. He escaped over rooftops, evading shooting. He escaped by swimming in a river. After five days he managed to reach his uncle’s house. He learnt that two of his friends were killed in the clashes, everyone at the meeting was arrested and the authorities were after him. He decided to flee the country. His uncle helped him. He used a people smuggler and a false Iraqi passport.’

4                     The Full Court also dealt with the findings and conclusion of the Tribunal.  It will be necessary to consider these in more detail below.  However, by way of background it is sufficient to refer to the following in the Full Court’s reasons:

‘The Tribunal accepted that the appellant is an Iranian National and an Arab. It found, however, that he had fabricated claims in an attempt to bring himself within the definition of a refugee. It did not find him to be a credible or a reliable witness. The Tribunal found the appellant to be a well-educated man, apparently from a fairly affluent background, who speaks Persian, Arabic and reasonably good English. There was nothing in the way he gave evidence before the Tribunal to suggest that he is naive, deficient in understanding or easily intimidated. He impressed the Tribunal as a person who would ask questions to clarify the situation, if he were unsure of what he was being asked.

In the light of these findings, the Tribunal rejected the appellant´s claims that he had been involved in political activities in Iran, had been imprisoned because of them, had narrowly avoided being arrested and had left Iran illegally. In his interview at the airport on arrival, the appellant had said that he had not been involved in any political activities or with any political groups. He also said that he had left Iran using a genuine Iranian passport. The appellant gave several reasons for the discrepancy between what he said at that interview and his later claims. The Tribunal rejected all of them.’

5                     The applicant sought special leave to appeal to the High Court from the Full Court’s decision in WADA.  That application was dismissed on 24 October, 2003: see [2003] HCATrans 442.

6                     In the interim, and following the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476, on 30 April, 2003 the applicant instituted proceedings in the High Court seeking orders for prohibition, certiorari, mandamus and other relief against the Tribunal and the Minister.  By consent that application was remitted to this Court in August, 2003. 

7                     The grounds of the amended application that is now before me raise three issues.  First it is argued that the Tribunal’s finding that the applicant could have obtained a false passport unlawfully was in breach of the rules of procedural fairness in that the applicant was not given an opportunity to comment on the facts that supported that finding.  Second, it is said that the Tribunal was in breach of the rules of procedural fairness in making credit findings based upon an incorrect understanding of what had been said at the entry interview.  Third, the applicant alleges that the Tribunal breached the rules of procedural fairness in that a fair minded observer would apprehend that the Tribunal may have prejudged some of the country information before it.

8                     These grounds raise different issues from those that have been previously raised in the proceedings which resulted in the decision of the Full Court in WADA.  Nevertheless, it is at least arguable that the current proceedings could be dismissed by reason of an Anshun estoppel: see SZBJM v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 404.  It is also possible that the proceedings could be dismissed for delay in instituting them in the High Court.  The applicant says that an Anshun estoppel is discretionary and in the circumstances of this case should not be applied.  He also says that the exercise of the discretion whether or not to grant the relief sought by the applicant should not result in the refusal to grant relief by reason of delay in this case.  The Minister takes no point in relation either to the Anshun estoppel or to delay.  The Minister is content for the issues raised in these proceedings to be considered on their merits.   In light of the Minister’s position and in view of the discretionary power in the Court to deal with the matter notwithstanding the previous proceedings, I am prepared to consider the issues raised in the Amended Application on their merits.

Fair Hearing - the Passport

9                     The Tribunal identified a number of aspects of the applicant’s evidence which led the Tribunal to doubt the credibility of his claim to have been politically active in Iran. One such aspect was his claim to have left Iran on a false Iraqi passport.  At his entry interview the applicant had said that he had left Iran with a genuine Iranian passport.  However, at all subsequent interviews he consistently maintained that he had left Iran with a false Iraqi passport.  Regardless of whether or not he had an Iranian or an Iraqi passport and whether or not it had been lawfully issued, the applicant did not have a passport of any sort when he arrived in Australia.  His initial explanation was that he was told to drop the passport in the sea, subsequently he said that the passport was taken by ‘the smuggler’.

10                  The inconsistency between the relevant statements as to whether he left Iran lawfully was a matter of some concern to the Tribunal.  On 31 May, 2001 the Tribunal wrote to the applicant through his Migration Agent and advised:

‘The Tribunal has information that would, subject to any comments you make, be the reason, or a part of the reason, for deciding that you are not entitled to a Protection Visa.

The information is as follows:

When you were interviewed upon arrival in Australia, you advised that you had not been involved in any political groups or in any activities against the government.  You also advised that you had left Iran on a genuine Iranian passport.

This information is relevant because it affects the credibility of your later claims.

You were invited to comment on this information during your interview with your case officer. The Tribunal is inviting you to again comment on this information. Your comments are to be given at an interview between you and the Tribunal Member reviewing your case.

The interview will be held in conjunction with the hearing of your case.’

11                  On 5 June 2001 the Migration Agent provided a written submission on behalf of the applicant.  That letter asserts that the applicant left Iran ‘illegally’ but does not deal directly with the inconsistency of the statements made concerning his passport at the entry interview. 

12                  The issue was discussed at the interview of the applicant by the Tribunal on 6 June, 2001:

‘[Tribunal] As you know, I wrote a letter to you last week and I told you we'd be discussing the contents of that letter at the hearing today. Now as you would well know, you were interviewed when you first arrived in Australia.  These are some of the things that you were told at the beginning of the interview. You were told that you were expected to give true and correct answers to the questions that were asked, you were told that the interview was your opportunity to provide any reasons why you should not be removed from Australia, you were told that you should understand that if the information you gave at any future interview was different to what you were saying at that particular interview, that this could raise doubts about the reliability of what you said. Now in spite of being told all of those things, when you were asked whether you had been involved in any political activities in Iran, you specifically said no you were not. And you were asked how, what document you'd used to travel to Australia and you said that you had used an Iranian, a legal Iranian passport.  Now, can you understand why, when you said those things at that interview, even though, after you were told that you were expected to tell the truth and that if you later said anything different this could cause troubles for you, why I would now have some difficulty with the claims that you've made?

­[Applicant]: I completely understand what you're saying, but I think it's also important if you realise that it was the first time for me that I'd left the country and I had no experience in such things from before I came to Australia, hearing those things and having the fear that I might be deported back to Iran, that created this fear that stopped me of telling everything and I just mentioned the cultural activities that I had and …

T: See that doesn't really make any sense, because what you're saying is that the Iranian authorities already knew about all of your political activity, so how could it possibly make any difference if you told the Australian government about your activity?

A: Having this in mind that the Iran government doesn't know about everything, even though they have some documents from me, they still aren't aware of everything and it was possible that they would put pressure on my family and knowing the good relationship between Iran and Australia, I thought that it's possible for me to be delivered to the hands of the Iranian authorities and then they would, they would deal with me.

T: I have to tell you … that I find your explanation for the differences between what you initially said and your current claims to not be the least bit persuasive.’

13                  On 14 June 2001 (about a week after the interview) the Migration Agent wrote to the Tribunal enclosing what purported to be a ‘copy of the applicant’s Iraqi passport on which he left Iran’.  The copy appears to be a photocopy of an Iraqi passport.  There was no explanation of where the copy came from or why its existence had never been previously mentioned. 

14                  The Tribunal dealt with the issue of the applicant’s passport in its reasons:

‘In his application for a protection visa and at the hearing the applicant’s major claim was that he feared persecution in Iran because of his political activities. He claimed that he had been imprisoned in the past because of these activities and that he had narrowly escaped being arrested shortly before leaving Iran. The applicant also claimed that he had left Iran illegally, using an Iraqi passport. I do not accept the applicant’s claims in this regard. Firstly, when he was interviewed upon arrival in Australia, the applicant specifically stated that he had not been involved in any political activities or with any political groups. He also stated that he had left Iran using a genuine Iranian passport.

The applicant has advanced several reasons for the major discrepancy between the information he provided on arrival in Australia and his later claims. In his application for aprotection visa he claimed that he had not wanted the Australian government to think he had left Iran illegally, that he had heard that he should leave the details of his claims to the last interview and that he feared some information might be passed back to the Iranian government. When the case officer interviewed him, the applicant claimed that he did not know his rights and that prior to the entry interview the interpreter told him to keep his answers brief. At the hearing the applicant claimed that he feared he could be deported to Iran and that an interpreter who had spoken to him in the company of an immigration officer sometime prior to the first interview told him that he would be interviewed three times, so he did not have to make all his claims in the first interview.

I accept that for a variety of reasons asylum seekers may be reluctant to disclose full details of their claims on arrival in Australia. … In addition, the record of the 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.

However, in the applicant’s case, his evidence was that he left Iran in fear of his life. The officer conducting the entry interview specifically told the applicant that he was expected to tell the truth during this interview. He was also told that the interview was his opportunity to provide any reasons why he should not be removed from Australia. The applicant was also advised that if the information he gave at any future interview differed from what he said during his entry interview, this could raise doubts as to the reliability of what he 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 naive 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 applicant impressed me as a person who, if he was unsure of what he was being asked, would ask questions to clarify the situation. In my view, it is implausible that a person such as the applicant, when clearly asked how he left Iran and whether he had been involved in any political activities, would give answers which he now claims are completely inconsistent with the truth. I am of the view that if the applicant had been involved in political activities in Iran, had been imprisoned because of this, had narrowly avoided being arrested and had left Iran illegally he would have indicated this during his entry interview, however tentatively.

… As I do not accept that the applicant was of any adverse interest to the Iranian authorities at the time of his departure from Iran, I do not accept that he left Iran illegally. I am of the view that the applicant left Iran legally, using a genuine Iranian passport, as he advised during his entry interview.  I note the photocopied document provided by [the Migration Agent] which he claims is a copy of the Iraqi passport used by the applicant to leave Iran. However, [the Migration Agent] has provided no explanation for how this particular document was obtained, or why it was not provided until a week after the Tribunal hearing. I note that neither at the hearing nor at any stage prior to the hearing did the applicant indicate that such a document existed let alone that it would be provided to the Tribunal. There is independent evidence before me indicating that false Iraqi passports can be purchased in Iran (see DFAT, CIR No.347/99, from DFAT Report 0235 CX37808 9 September 1999).  In my view, it would not have been a difficult matter for such a passport to have been purchased since the applicant left Iran.  In the circumstances, I cannot accept the document provided by the [Migration Agent] as corroboration of the applicant’s claim that he left Iran using a false Iraqi passport.’

15                  The applicant makes two complaints about the Tribunal’s reasons.  First, the applicant says that the Tribunal did not afford him an opportunity to comment on the adverse inference it had referred to in its letter.  He has filed an affidavit in these proceedings where the applicant affirms that ‘At the RRT hearing, I was not asked any questions about the Iraqi passport.’  The short answer to this is that the applicant was afforded such an opportunity.  The answer that he made is set out in the reasons of the Tribunal.  The Tribunal has given its reasons why it did not accept that answer.

16                  The other complaint is that the Tribunal did not give the applicant an opportunity to comment on the DFAT report which indicated that Iraqi passports could be purchased in Iran.  The applicant submitted that that report clearly referred to Iraqi refugees in Iran purchasing false Iraqi passports and had nothing to do with the applicant’s position.  The applicant was an Iranian.

17                  It would seem to be clear that the DFAT report was not referred to the applicant for comment.  It would also seem to be clear from the face of that report that it did not have direct application to the position of the applicant, other than suggesting that false Iraqi passports could be obtained in Iran.

18                  More importantly it would also seem to be clear that the Tribunal did not refer back to the applicant any concerns it had about the provenance of the photocopy that had been provided.

19                  Nevertheless, it does not seem to me that this gave rise to any jurisdictional error by the Tribunal.  The issue before the Tribunal was whether the claim by the applicant that he had a reasonable fear of persecution if he returned to Iran was creditable or not.  For that purpose the applicant sought to satisfy the Tribunal that he had been involved in political activities in Iran which meant that he was at risk of persecution.  The applicant claimed that he had fled Iran in fear of such persecution.  Obviously the applicant’s own credibility was important in this context.  The question of whether he left Iran lawfully was important to the question of whether he had, in fact, been at risk as he claimed.  The inconsistency in his account of whether he had an Iranian passport or a false Iraqi passport was also relevant to the general question of the applicant’s credibility.  In relation to those two aspects the Tribunal plainly gave the applicant an adequate opportunity to address the concerns that it had.  The applicant was unable to do so. 

20                  After he was interviewed the applicant forwarded to the Tribunal a photocopy of what purported to be an Iraqi passport.  The letter accompanying the photocopy merely referred to ‘a copy of the applicant’s Iraqi passport on which he left Iran.’  Without some explanation of what it was, where it came from and why no mention had been made of it previously its evidentiary value was, at best, very limited.

21                  The Tribunal did nevertheless consider whether the document may have been genuine.  It referred to the DFAT report as supporting the proposition that false Iraqi passports could be obtained in Iran.  In my view it was entirely unnecessary to put that fact to the applicant.  That fact was entirely consistent with the case being put by the applicant which was that he obtained a false Iraqi passport in Iran. 

22                  The Tribunal then commented that ‘it would not have been a difficult matter for such a passport to have been purchased since the applicant left Iran’.  That is a finding that the Tribunal was permitted to make.  Again it is a finding which was necessarily consistent with the applicant’s own case that false passports could be obtained and that he had obtained one.

23                  But most importantly the Tribunal then concluded that it ‘could not accept the document’ as corroborating the applicant’s story.  This conclusion was clearly open to the Tribunal.  Indeed, it is difficult to imagine that the Tribunal could have concluded that the document was corroborative of the case being put by the applicant, given the failure of the applicant to give any explanation of the document. 

24                  The complaint made by the applicant was that he was not afforded procedural fairness.  However, procedural fairness is a practical issue which necessarily depends upon the facts and circumstances of the particular case.  In this case the applicant ‘is a well educated man’ who ‘understands and speaks reasonably good English’.  He was represented by a Migration Agent.  The letter from the Tribunal and the interview itself identified the problem that the Tribunal had with the inconsistency in his evidence and with his claim that he had left Iran on a false Iraqi passport.  He made no mention at the interview that there was a photocopy of the false passport and that he was intending to obtain it.  Instead over a week later his Migration Agent sent the photocopy to the Tribunal. 

25                  The effect of the complaint made by the applicant is that the Tribunal was obliged either to accept that the photocopy was what he alleged it to be or to make further inquiries and, in particular, give him a right to be heard.  In the circumstances as discussed the common law requirements of procedural fairness did not impose any such obligation.  Otherwise there would be no end to any process where the rules of procedural fairness might apply.  Before any such requirement could possibly have arisen it was incumbent on the applicant to have provided sufficient information to the Tribunal to at least put it on notice that the document might be genuine.  He did not do so. 

26                  This is not to deny that the Tribunal may not have been required to make further inquiries in other circumstances, such as where an applicant might not have understood the process or did not have the advantage of any assistance from a Migration Agent.  Nor is it to deny that further inquiries might not have been required if the Tribunal had proposed to rely upon the late receipt of the report to make some adverse finding against the applicant, or where it was intending to make a positive finding that the report was forged, presumably with the knowledge of the applicant: see Waco v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 at [53] ff and see WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 at [36] ff.  However, in this case there was no finding that the applicant had forged a document - only that it was possible that such a document could have been forged by someone.  Nor was there any finding against the credit of the applicant on the basis of the photocopy of an Iraqi passport which he provided.

27                  In my view there was no breach of the rules of procedural fairness by the Tribunal in the manner in which it dealt with the question of whether the applicant had an Iraqi or Iranian passport or the credibility issues arising in that context.  The applicant was given adequate opportunity to comment on the matters of concern to the Tribunal.  Any problems that the applicant had in that regard were entirely of the applicant’s own making [or those of the Migration Agent acting on his behalf] in failing to give any explanation of the photocopy which he provided.  In the circumstances it was not unfair for the Tribunal to proceed to make its determination without seeking further explanation from the applicant.  In my view there was no jurisdictional error by the Tribunal in this regard. 

Fair Hearing - the Entry Interview

28                  In the transcript of the RRT hearing quoted in par 12 and in its reasons quoted in par 14 the Tribunal drew particular attention to the fact that the Departmental officer at the entry interview had expressly stated to the applicant that the applicant should tell the truth and that failure to do so might be later used to doubt his credibility.  Plainly enough the Tribunal understood that the applicant had been so informed during the entry interview.

29                  During or after the entry interview the relevant officer completed a pro-forma document which purports to record the introductory statement that presumably should be made by such officers at the commencement of the interview.  It records in part:

‘This interview is being conducted at Derby on 13/11/2000 between myself, [an officer] ...of the Department of Immigration and Multicultural Affairs and[the applicant].

This interview is being conducted with the assistance of [an interpreter] who is an interpreter in the Persian language.

I need information about you and your arrival in Australia.

This interview is your opportunity to provide any reasons why you should not be removed from Australia. If you do not answer questions a decision may be made on the basis of the information we have.

You are expected to give true and correct answers to the questions I ask.

You should understand that if the information you give at any future interview is different from what you tell me now, this could raise doubts about the reliability of what you have said.

…

Do you understand what I have said?  Answer Yes’

Those parts of the above document (including the final answer ‘Yes’) which are in bold font were handwritten on the original document in blank spaces specifically provided for that purpose.  There is no evidence as to who filled them in, but it may be inferred that it was by the officer concerned.  There is no reason to think that the applicant saw the document.  He has denied that the word ‘yes’ is in his handwriting.

30                  The transcript of the entry interview has been put into evidence before me.  The transcript is not complete.  It begins:

‘[Officer]: (RECORDING STARTS MID SENTENCE) DEPARTMENT OF

IMMIGRATION AND [APPLICANT].  THIS INTERVIEW IS BEING CONDUCTED (indistinct) WHO IS AN INTERPRETER IN THE PERSIAN LANGUAGE.

            Q1. What is your citizenship?

(INTERVIEWEE THROUGH INTERPRETER):

A(Indistinct.)

Q2.

What is your religion?

A(Indistinct.)’

Although the recording starts in mid sentence, it can be observed that the words ‘this interview is being conducted … who is an interpreter in the Persian language’ appears to be the same as the first paragraph of the proforma quoted in par 29 above.  If so then there may be an inference that the rest of the proforma was not read to the applicant, at least if it is assumed that it would have been read in the same order as it appears on the proforma.

31                  I have no evidence before me from the officer concerned or from the interpreter.  The applicant has filed an affidavit where he deposes that he cannot remember whether or not he was read the comments on the proforma.

32                  The applicant says that he was not afforded a fair hearing by the Tribunal in that when the Tribunal put to him that he had been told at the entry interview that he should tell the truth he had assumed that that was what had been told at the interview.  If he had known that the tapes of the entry interview did not show that this was what he had been told at the entry interview he would have asked the Tribunal to listen to the tapes of that interview.

33                  There are two problems with this.  First, I am not satisfied that the transcript of what was said at the entry interview is sufficiently detailed or complete that it is capable of establishing the negative proposition upon which the applicant relies - namely, that the fact that the transcript does not mention that the applicant was told not to tell the truth proves that he was not told that.  Certainly there is an inference that he was not told, but that is not sufficient, particularly when the Tribunal has found (or at least assumed) that he was so told.  No other evidence has been put forward which confirms that he was not told.  On the other hand, there is the pro-forma document apparently filled in by the relevant officer which at least infers that he was told.  In the circumstances I am not satisfied that the applicant was not told that he should tell the truth and that any lies might tell against his credit.

34                  Secondly, the issue of procedural fairness is ultimately a question of whether the procedure adopted was fair in the circumstances.  Obviously if the procedure adopted did, in fact, mislead the applicant then the procedure may not have been fair.  However he was not misled in this case.  As he has deposed in his affidavit, he had no independent recollection of what he had been told at the entry interview.  The Tribunal revealed to the applicant that which the Tribunal intended to assume.  It would seem clear that the applicant also assumed that he had been told what the Tribunal told him he had been told.  He was nevertheless given an opportunity to comment.  He was not misled in relation to what information the Tribunal intended to take into account in its reasons or decision.  There is nothing unfair in this process.  Procedural fairness does not involve merit review.  It is not a breach of procedural fairness that the assumptions made by the Tribunal or the conclusion reached by the Tribunal were ultimately in error, so long as the applicant was afforded a reasonable opportunity to put his case and to answer any matters that might be found against him.  The applicant received that opportunity in this case.

35                  I am not satisfied that there was any jurisdictional error in the use made by the Tribunal of what it understood to be what the applicant had been told at the entry interview. 

Misuse of Country Information

36                  One of the bases upon which the Tribunal rejected the applicant’s evidence was:

‘… because it is inconsistent with the independent evidence before me. In relation to this, the applicant claimed that the ultimate goal of his group, which he claims was associated with the AAPDPF, was independence for Khuzestan. However, the independent evidence before me indicates that whilst there was a push for the independence of Khuzestan (otherwise known as Arabistan) at the time of the Revolution, Arab Iranians supported the Iranian government during the Iran-Iraq war. There is no evidence before me to suggest that there is currently any political push for autonomy by Arab Iranians. If there were any such movement, I am of the view that it would be known to sources used by agencies such as the US State Department, the Australian Department of Foreign Affairs and Trade, the United Kingdom Home Office and UNHCR.’

37                  Earlier in its reasons the Tribunal also commented:

‘There is no independent evidence suggesting that a group known as Ahwazian Arab People’s Democratic Popular Front is active in Iran.’

38                  The applicant says that the Tribunal’s conclusion about the independent evidence is contrary to two of the country reports that were referred to by the Ministerial delegate, one of which was also cited by the Tribunal.  Part of the report dated May 1998 by the Canadian Immigration and Refugee Board’s Research Directorate (IRN29404.E28) is quoted in the reasons of the Tribunal.  The quoted part of the report refers to a ‘very small and politically unimportant group of Iranian exiles’ which had carried out no activities inside Iran since 1987.  However, the report continued:

‘There are some underground organizations of Iranians of Arab origin in the province of Khuzestan that have conducted low-level campaigns against the Iranian government for years.  These groups come and go and change their names quite regularly...these organizations are very insignificant’

This further part of the report was not quoted by the Tribunal or otherwise referred to in its reasons.

39                  The delegate (but not the Tribunal) also referred to a subsequent report of 29 June 2000 from the same body (IRN34773.E).  That report included the following:

‘The best proof of the weakness of sectarian links is the Iranian regime’s attitude to Shiite Arab residents of southwestern Iran, in the area known as Ahvaz (Arabistan). These Shiites are openly maltreated because they are ethnic Arabs, and the area has witnessed anti-government unrest. If Iran maltreats its Shiite Arabs, it is natural that political ties between Tehran and Shiite movements in the Arab world should be prone to change (7 Feb. 1996).

A 21 April 2000 report from the Iraqi newspaper Al-Iraq contains information on a group called the Arab Front for the Liberation of Ahvaz (AFLA) that “organized a ceremony [in Iraq] marking the 75th anniversary of the occupation of Ahvaz and the 19th anniversary of its inception.”  The ceremony included speeches by the AFLA secretary general and another on behalf of the Arab Socialist Ba’th Party (ibid.). The latter considered the AFLA inception a historic event in the life of our Arab people in Ahvaz, who have expressed their determination to continue with their quest for resurgence and liberation.

…

The ceremony was attended by comrades the secretary and members of the Abu-Ja’far al-Mansur Party Branch Command, AFLA cadres, and a crowd of Ahvaz people (ibid.)’

That later report is not expressly referred to in the Tribunal’s reasons.  The Tribunal did have before it the Department’s file which included the record of the interview with the delegate.  However, there is nothing before me to show whether or not the Tribunal did have before it the report of 29 June 2000. 

40                  The Minister says that the ‘new’ information contained in the two reports does not reveal that there was, in fact, ‘any political push for autonomy by Arab Iranians’ to use the words in the Tribunal’s reasons.  As a matter of strict interpretation that may be true.  On the other hand, the Tribunal’s reasons are at least capable of being read as meaning that the Tribunal did not believe the applicant’s claims in part because the applicant claimed to be a member of an active political group which the Tribunal did not accept existed under the name he gave.  There was at least some information which was before the delegate which would suggest that that organisation did exist in Iran in 2000.  Those reasons can also be read as suggesting that the Tribunal was of the view that there was no independent country evidence before it to show that there was an active political campaign seeking political rights for Arab Iranians in Khuzestan whether under the name given by the applicant or otherwise.  The report that was before the Tribunal, and the report that was before the delegate, both suggested that there was such a campaign although the earlier report described it as ‘very insignificant’.

41                  Even if the Tribunal misunderstood the material that was before it and was consequently in error in concluding that there was no evidence supporting the applicant’s case this would not ordinarily involve a jurisdictional error.  It is clear that the Tribunal has jurisdiction to make factual determinations even where those determinations are in error:  see Waterford v The Commonwealth (1987) 163 CLR 54 at 77-78.

42                  There are some qualifications to this general principle.  For example, where the error is such that it involves a failure to consider the case put by the applicant then this might be a jurisdictional error: see SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 368 [16]-[18].

43                  This general proposition may be qualified where the factual finding itself arises in circumstances where a reasonable bystander aware of the surrounding facts would apprehend that the Tribunal had prejudged the issue: SBBG v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 281.  In that case the relevant Tribunal had made the same finding as to the meaning and effect of independent country information in exactly the same terms as in a number of other cases.  On the face of it the findings involved misquotations; quotations taken out of context and implications that appeared unsustainable as a matter of logic and so on.  The Full Court noted (at 289 [31]) that ‘where the conclusion reached is obviously wrong as a matter of fact and that error is repeated in exactly the same terms in later cases, then it is at least arguable that the repetition of the error would lead a reasonable observer to apprehend that the tribunal had prejudged the relevant issue’.  That conclusion needs to be understood in the context of that particular case.  It was an appeal from a single Judge.  The decision appealed from involved the error identified by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24.  The question before the Full Court was how the Court should respond to that error.  The conclusion of the Full Court went no further than to say that it was arguable that a reasonable bystander might apprehend that the repetition of a factual error in exactly the same terms might constitute prejudgment.  The case was then remitted to a single Judge for further consideration.  If it matters it would not appear that an argument on the basis of reasonable perception of bias was put when the matter was ultimately considered by Lander J: see SBBG v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1315.  So understood the decision of the Full Court in SBBG goes no further than to say that it is arguable that the continued repetition of a factual error in the same terms may identify prejudgment.

44                  The applicant says that the same error (assuming it to be an error) as was made in this case was made in other cases by the same Tribunal member.  Reference was made, for example, to case N00/32610 decided by this member on 24 May, 2000 where the member also made the same quotation from the May, 1998 report referred to in par 38 above.  The member concluded:

‘[The applicant’s] evidence--concerning his political activities is also inconsistent with the independent evidence before me. That evidence indicates that whilst there was a push for the independence of Khuzestan (otherwise known as Arabistan) at the time of the Revolution, Arab Iranians supported the Iranian government during the Iran-Iraq war.  There is no evidence before me to suggest that there is currently any political push for autonomy by Arab Iranians. If there were any such movement, I am of the view that it would be known to sources used by agencies such as the US State Department, the Australian Department of Foreign Affairs and Trade, the United Kingdom Home Office and UNHCR.

Moreover, the independent evidence before me, which I accept, is that an organisation called the Arab People’s Movement, also known as the Movement for the Liberation of Arabistan (one of the possible translations of Gahbat Tahrir Arabistan), is a small and politically insignificant group of Iranian exiles, most of whom live in the Netherlands and Germany. The evidence indicates that the group was founded shortly after the Iranian ­Revolution and has not carried out activities inside Iran since 1986 or 1987. I am of the view that if this organisation was currently active in Iran, this would also be known to sources used by the agencies referred to above. The inconsistencies in [the applicant’s] evidence, together with the independent evidence before me, lead me to conclude that [the applicant] was not active in an organisation called Gahbat Tahrir Arabistan in the two years prior to his departure from Iran. I am of the view that he fabricated this claim in an attempt to enhance his claims to refugee status.’

45                  The first paragraph of this quotation is word for word the same as that in the current decision (see par 36 above).  On the other hand, the second paragraph is quite different.

46                  Reference was also made by the applicant to the decision of the same Tribunal member in matter N01/37184.  In that case the member cited some of the same reports as were cited by the Tribunal in this case.  However it would not appear that the report of  May, 1998 was referred to; nor would it appear that there is any conclusion in the same terms as that referred to in pars 36 and 44.

47                  Taken at its highest the complaint of the applicant establishes no more than that on two occasions the Tribunal member has cited the same report and not referred to part of the report which might suggest that there was some ongoing political activity which was ‘very insignificant’.  By itself this would not lead a reasonable bystander to apprehend that the Tribunal had prejudged the issue.  I refer to and adopt the comments of French J in WAFK v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1293 at [41] in relation to an argument which would seem to be exactly the same as that before me. 

48                  I am not satisfied that the report of 29 June, 2000 was ever before the Tribunal.  Consequently, it could not be argued that the Tribunal could be apprehended to have prejudged any issue in misunderstanding it.  However, even if I was wrong in that and the Tribunal had the report before it, I do not think that the similarity in the conclusions reached by the Tribunal in the matters to which I have referred would lead a reasonable bystander to apprehend that the Tribunal had prejudged the issue, particularly in the absence of any submission or argument before the Tribunal drawing its attention to the particular words which, it is now said, the Tribunal overlooked.

49                  In my view there was no jurisdictional error by the Tribunal in the conclusions it reached about the Arab political movement in Iran.  Any errors in that regard were errors of fact within the jurisdiction of the Tribunal.

50                  In my view none of the alleged jurisdictional errors can be made out.  The application must be dismissed. 

51                  I note the considerable efforts that have been made by Mr Barratt QC and by Mr Ower and by those instructing them.  They have all acted pro bono.  However, it is clear that no stone has been left unturned.  The Court thanks them for their assistance.

52                  I will hear the parties as to costs.

Associate:

Dated:              3 May 2004