FEDERAL COURT OF AUSTRALIA

STBB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1587

MIGRATION – judicial review – procedural fairness – where applicant claimed errors by interpreter resulted in procedural unfairness – significance of errors – whether failure to call witnesses resulted in jurisdictional error.

Migration Act 1958 (Cth) s 426

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 applied

SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185 applied

W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211 distinguished

NAHN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 247 cited

W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 99 cited

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

W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 cited

STBB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

SAD 804 of 2003

LANDER J

6 DECEMBER 2004

ADELAIDE

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     This is an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for the issue of the constitutional writs in relation to a decision of the Refugee Review Tribunal (RRT) made on 19 April 2001.  The application was filed in this Court on 14 October 2003, two and a half years after the decision was made.

2                     The grounds upon which the application is based are:

‘1         The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to or in inviolable limitation or restraint upon its power and its jurisdiction necessary for the existence of the satisfaction required by s65 to grant or refuse the application.  The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that:

Particulars

i)          It failed to deal with and ignored the Applicant’s evidence that he did not discover where he was taken by security forces until he was told be[sic] his brother after he gave his written Statutory declaration to the Tribunal.

ii)         It failed to deal with and ignored the Applicant’s evidence that he did not discover the details of the hospital he was taken to and who assisted him to escape until he was told by his brother after he gave his written Statutory declaration to the Tribunal.

iii)        It based its decision on facts which did not exist, alternatively it took into account irrelevant material in basing its decision on inconsistencies in the applicant’s evidence which did not in fact exist.’

3                     I think grounds 1 and 2 are pleaded to support the claim that there has been a constructive failure to exercise jurisdiction.  Ground 3, I think, is pleaded to support the claim that the RRT acted in excess of jurisdiction.  No particulars of ground 3 were given.  The applicant did not identify the non-existent facts upon which the decision is said to be based, the irrelevant material which was taken into account or the inconsistencies which are said not to exist.

4                     The applicant was later (3 September 2004) given leave to amend his application to include further grounds and particulars.

5                     The applicant relied upon two grounds in the amended application:

‘(a)      that a breach of the rules of natural justice occurred in connection with the making of the decision, and

(b)       that there was no evidence or other material to justify the making of the decision.’

6                     He gave particulars of both grounds.

7                     Those particulars are contained in written submissions filed on 2 September 2004 and further written submissions filed on 21 October 2004.

8                     In relation to the first ground he gave the following particulars:

‘a)       In the response to hearing invitation form, the applicant named three witnesses who could attest to the fact that he had left Iran ion [sic] a false Iraqi passport.  During the hearing he told the member he had witnesses to attest to the same.  The Tribunal did not call the witnesses as requested.

b)         When the member was questioning the applicant during the hearing about how he managed to obtain a fake Iraqi passport and leave Iran on it, the applicant told the member that he could obtain the original passport he left Iran on.  The Member told him that he didn’t need to.

c)         The Tribunal finally found that he had not left Iran on a false Iraqi passport without access to either of the forms of evidence offered by the applicant.

The proceedings before the Tribunal involved a denial of natural justice or procedural Fairness as the applicants [sic] statements were not completely translated to the Tribunal and the Applicant had difficulty understanding the interpreter.’

9                     The applicant also gave particulars of those grounds and, because the matter was addressed in detail, I shall include those particulars:

‘a)       At two points during the hearing the applicant said that he could not understand the interpreter.  The interpreter did not translate these statements to the Tribunal.

b)         Among the other translation errors (according to the Applicant) are the following:

·     Applicant in Farsi:  My mother was in Awhaz.

·   Translator in English:  I was in Awhaz.

·     Applicant in Farsi:  Mr Farsian Darioush is an intelligence agent who was a friend of my brothers.

·   Translator in English:  Mr Farsian Darioush was a friend of my brothers.

·     Applicant in Farsi:  Excuse me?

·   Translator in English:  Yes.

(Several times during the hearing)

·     Applicant in Farsi:  My mother told my brother what was happening and my brother started trying to find out what was happening to me, his friend Mr. Farsian said that he could not go to visit me at all or he would be in danger, he said that he would be in very big trouble if anyone knew he had given my brother any information.

·   Translator in English:  My mother told my brother what was happening and my brother started trying to find out what was happening to me.’

10                  The applicant also gave particulars of ground (b) but it is not necessary to include those particulars.  However, I shall address the argument as he presented it.

11                  The applicant is a detainee at the Baxter Detention Centre and it has proved difficult to have this matter heard.

12                  The matter was originally listed for hearing on 22 January 2004 before Mansfield J.  When the matter was called on it became apparent that some directions needed to be given to ensure that the respondent provided the applicant with a transcription of the hearing before the RRT.  Consequential directions were made.

13                  Eventually, the matter was listed for hearing before me on 7 July 2004.

14                  At that time a solicitor acting on a pro bono basis represented the applicant.  On that day the solicitor sought leave to withdraw.  He said that he had sought and obtained counsel’s advice and that it was in the applicant’s interests that he cease to act.  Of course, he did not tell me what that advice was.

15                  I gave the solicitor leave to withdraw.  I directed the retiring solicitor to provide the tapes of the hearing before the Minister’s delegate and the transcription of those tapes which were in his possession to the applicant.

16                  The applicant sought an adjournment which was opposed by the Minister’s counsel.  I adjourned the matter until 1 September 2004 because the applicant claimed that he would be disadvantaged by having to proceed.  He said that his brother had collected money which would allow him to retain a lawyer.

17                  When the hearing resumed on that day the applicant was unrepresented.  An interpreter was in Court.  A Mr Brian Woodcock who is not a lawyer but a friend of the applicant sought to make submissions on the applicant’s behalf.  Because the applicant was in Baxter Detention Centre the hearing became difficult to manage.

18                  I adjourned the hearing until 3 September and directed that the applicant be brought to the Court.

19                  On 3 September 2004 the applicant sought to make submissions calling into question the quality of the translation of what was said in the RRT.  I pointed out to him that there was no evidence to support his complaint.  The matter was further adjourned so that the applicant could tender evidence of what were said to be errors by the interpreter in the RRT and the hearing before the delegate.  As I have already said, I also gave the applicant leave to amend his application because his application did not include complaints which were contained in his written submissions.  I also gave Mr Woodcock leave to appear and assist the applicant.  In that regard, I treated Mr Woodcock as a quasi ‘McKenzie friend’.  Lastly, I gave the respondent leave to file affidavits in relation to the translation of the hearing before the delegate or the RRT.

20                  The matter finally came on for hearing on 27 October 2004.  The applicant read a statutory declaration of Nima Mottaghi who addressed only the translation at the hearing before the RRT.  The respondent read two affidavits; an affidavit of a solicitor in the respondent’s solicitors’ employ which exhibited a transcript of the tape of the hearings before the Minister’s delegate on 27 November 2000 and the RRT on 3 April and 12 April 2001; and an affidavit of Lili Master, a Persian interpreter who addressed the hearing before the RRT.  I received all three affidavits.

21                  The applicant sought and obtained leave to cross-examine Ms Master on her affidavit.

22                  Ms Master was an impressive witness and I accept her evidence in its entirety.

23                  There is some dispute as to the extent of the errors made by the interpreter at the RRT hearing.  However, the applicant’s complaints, even if accepted, do not raise any serious matters of concern in the translation.  The errors of which he complains could not have had any significance in the resolution of the matter before the RRT.  Moreover, the applicant was not disadvantaged by the interpreter.  I accept Ms Master’s evidence that the applicant did not say to the interpreter that he could not understand the interpreter or that he had difficulty with the interpreter.

24                  Ms Master has deposed:

‘6.        In my opinion the interpreter was competent and did a good job of interpreting at the hearings on 3 and 12 April 2001.  He interpreted what the applicant said almost word for word.  Any errors made by the interpreter were very minor.  In my opinion any errors made can be attributed to the difficulty of the work.’

25                  I accept that evidence.  The applicant’s complaint that he was denied procedural fairness and not accorded natural justice because his statements were not completely translated to the RRT and that he had difficulty understanding the interpreter fails on the evidence.

26                  However, there are other complaints of a denial of natural justice and lack of procedural fairness which need to be addressed:

‘The proceedings before the Tribunal involved a denial of natural justice or procedural fairness as the applicant’s request for witnesses to be heard was not granted and an offer to obtain the false passport he left Iran on was also refused.

PARTICULARS

a)    In the response to hearing invitation form, the applicant named three witnesses who could attest to the fact that he had left Iran ion [sic] a false Iraqi passport.  During the hearing he told the member he had witnesses to attest the same.  The Tribunal did not call the witnesses as requested.

b)    When the member was questioning the applicant during the hearing about how he managed to obtain a fake Iraqi passport and leave Iran on it, the applicant told the member that he could obtain the original passport he left Iran on.  The Member told him that he didn’t need to.

c)     The Tribunal finally found that he had not left Iran on a false Iraqi passport without access to either of the forms of evidence offered by the applicant.’

27                  The applicant was born in Isfahan in Iran on 21 March 1976.  He arrived in Australia by boat on 9 November 2000 without any travel documents.  He was refused immigration clearance and was taken into detention at the Curtin Immigration Detention Centre.

28                  On 24 November 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs.  A delegate of the Minister of Immigration and Multicultural Affairs refused the application on 19 February 2001.  On 21 February 2001 he applied to the RRT for a review of that decision.  On 19 April 2001 the RRT affirmed the decision of the delegate of the Minister not to grant a protection visa to the applicant.

29                  The applicant claimed, and was found to be, a national of Iran.  He is a Shi’a Muslim who speaks, reads and writes Farsi and Arabic.  He claimed to be an ethnic Arab.

30                  He claimed that he was educated for a period of 13 years and completed his education in secondary school in 1995.  He worked for two years as a battery salesman, then as a taxi driver for a year, and then as a carpet salesman until September 2000.

31                  He said that about two years before he left for Australia he became friendly with a man, Masoud Madani, who was a relatively wealthy bachelor.  He said that he went to Masoud’s house where he would meet women and drink alcohol.

32                  In August 1999 the applicant married and his friendship with Masoud deteriorated even though the marriage was never formalised and the applicant never lived with his wife.  However, in June 2000, Masoud and a friend rushed into the applicant’s house and informed the applicant that Masoud’s house had been raided and security officials had found alcohol on the premises and arrested two female friends who were also at the house.  Masoud told the applicant that he had just managed to escape but wanted to hide with the applicant.

33                  Very shortly thereafter, security officials raided the applicant’s house and arrested the applicant, Masoud and his friend.

34                  The applicant claimed that he was detained for a period of more than three months during which he was interrogated, abused and beaten.  He was accused of involvement in political violence, terrorism, organising riots and collaborating with opposition groups.  The applicant claimed that, in the face of a threat of torture, he confessed to things that he had not done.

35                  He said that when he confessed his interrogators became angry and beat him to a point where his heart stopped and he was hospitalised.  He said that he did not know to which hospital he was taken.  At hospital his treating doctor advised him to leave the hospital and go to his friend Faad’s house.  He said that his brother then heard, through the treating doctor, that he was at Faad’s house and his brother arranged for his escape.  The applicant fled to Tehran where he obtained a false Iraqi passport and left through the Tehran airport.  He apparently travelled to Malaysia where a people smuggler gave him a false Iranian passport on which he travelled to Indonesia.  That passport was taken by the smuggler before the applicant left for Australia by boat.

36                  His claim before the RRT, as it had been before the delegate, was that he feared that he would be seriously harmed if he were returned to Iran because he is perceived by the authorities to be a terrorist and a person who harboured anti-government political opinion.

37                  As I have said, the RRT was satisfied that the applicant was a national of Iran.  It was also satisfied that the applicant did have a friend with whom he drank alcohol and entertained women – at least until the applicant married.  It was satisfied, however, of very little else.  Indeed, after making the findings to which I have referred the RRT said:

‘The balance of his account of events is not credible, although it is possible that he left the country with a false passport.  He appeared to have a genuine fear of returning to Iran, although the Tribunal is not satisfied, for the reasons given below, that he has genuinely described the circumstances that give rise to such fear.’

38                  The RRT rejected the applicant’s claim that his house was raided and that he was arrested.  In particular, it doubted that the house was raided five minutes after the applicant’s friend, Masoud, arrived at the house.  It also noticed that the security officials who raided Masoud’s house were from a different agency to those who raided the applicant’s house.  It doubted that he was ever taken into custody by the authorities.  The RRT referred to the applicant’s change of account in relation to where he was taken.  Originally, he said he was taken to an unknown destination but at the hearing he said he was taken to a Sepah office.  It doubted that he ever escaped from the hospital which he said had admitted him.  It noted that the applicant was initially unable to say to which hospital he had been admitted.  At the hearing, however, he identified the hospital to which he had been sent.

39                  It noted that despite his claim that he had been tortured into unconsciousness and had suffered a heart attack, he was able to walk unaided out of the hospital without being noticed.

40                  The RRT noticed discrepancies in his account of where he went immediately after leaving the hospital.  It described his account as a fabricated story.  It pointed to a number of inconsistencies in his account.  In particular, it noted that his claims were inconsistent with his application form which described him as a carpet salesman until September 2000, the month in which he escaped.  The RRT doubted that he left Iran illegally.

41                  The applicant complained about the RRT’s reference to perceived inconsistencies between the applicant’s written review submission, his compliance interview and his oral evidence.

42                  It is possible, as the applicant asserted, that although his family members knew of the hospital to which he was taken, he remained unaware until he later escaped.  However, the RRT was entitled to refer to these matters in its reasons and to take them into account in its assessment of the applicant’s credibility. 

43                  The RRT was also not wrong to have regard to the improbability in the applicant’s account that the applicant’s alleged torturers had admitted him to hospital for treatment of wounds inflicted upon him by them. 

44                  The applicant also attacked the RRT’s finding of implausibility in respect of the his evidence that his house and his friend Masoud’s house were raided by two different security organisations.  The RRT was entitled to examine the applicant’s evidence in this respect.  The applicant said that the RRT refused to allow him to address it on the different functions and modus operandi of the police force, security forces and intelligence forces in Iran.  In my opinion, the transcript of the hearing does not disclose that the RRT refused to hear the applicant on this point.

45                  There are a number of inconsistencies in the factual history provided by the applicant in the documents and in his evidence before the RRT.  Those inconsistencies would justify the RRT rejecting the applicant’s evidence.

46                  The RRT did not have to deal with every aspect of the applicant’s account, especially when the RRT did not believe that the applicant was truthful in claiming that he had been taken in by authorities and later admitted to hospital.  There were a number of inconsistencies detailed in the RRT’s reasons which would have entitled the RRT to find the applicant not to be a credible witness.  The RRT was entitled to find, in my opinion, on the information before it, that the applicant was not a credible witness and that his account was unlikely.

47                  The RRT was bound to consider the applicant’s credit and it was for the RRT to determine whether the applicant was a credible historian: Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67].

48                  In considering credibility and any inconsistencies inherent in an applicant’s account, the RRT is bound to exercise care: SAAK v Minister for Immigration and Multicultural Affairs (2002) 121 FCR 185 at [21].

49                  There is no error demonstrated in the RRT’s approach and grounds 1 and 2 of the applicant’s grounds must fail.

50                  The applicant argued that the RRT was in error in failing to uphold his application for review on the ground that he was of Arab ethnicity.  At page 10 of its reasons, the RRT stated:

‘The Tribunal has considered the information that the Applicant is an Arab.  His claims have not disclosed genuine fears of persecution for that reason, although he says he was a sympathiser of an Arab state in Khuzestan.  The Tribunal is not satisfied that he has a subjective fear of persecution on account of being Arab.  Nor is there any information before the Tribunal to support a conclusion that, even if he did have a genuine fear of persecution for that reason, the fear would be well-founded.’

51                  The applicant referred to a previous decision in the RRT in which an applicant was accepted as being an Arab and was granted a protection visa.  I do not consider that the previous decision of the RRT indicates that the RRT was incorrect on this occasion to dismiss the application for review.  That previous decision was not arrived at solely on the ethnicity of the successful applicant before the RRT.  The RRT’s earlier decision was made in light of a finding that the applicant had converted to Christianity and that he would be persecuted for a Convention reason on account of his imputed political opinion, his religion and his ethnicity. 

52                  The applicant did not present a case before the RRT that he feared persecution because of his ethnicity.  Accordingly, there was insufficient evidence before the RRT that would justify a finding of a well founded fear of persecution by reason of the applicant’s ethnicity alone.  The applicant’s argument must fail.

53                  The applicant also argued that the RRT decision was infected by political pressure.  The applicant did not particularise what pressure was said to have influenced the decision nor did he point to any evidence which supported this claim.  This argument must accordingly fail.

54                  The applicant asserted that he had been denied procedural fairness because the RRT failed to call three witnesses referred to by the applicant on his invitation to hearing form.  The applicant claimed that the RRT’s failure to call the witnesses amounted to a jurisdictional error.  Section 426 of the Migration Act 1958 (Cth) provides:

‘(1)      In the notice under s 425A, the Tribunal must notify the applicant:

(a)     that he or she is invited to appear before the Tribunal to give evidence; and

(b)     of the effect of subsection (2) of this section.

(2)       The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice.

(3)       If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant’s wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant’s notice.’

55                  All three witnesses listed on the response to hearing invitation form were described as being witnesses who would give evidence that the applicant had in fact left Iran illegally using a fake Iraqi passport.

56                  At the applicant’s RRT hearing, he said that he had a witness who was with him at the Tehran airport that could verify that the applicant was there.  He also suggested that he could contact the people smuggler who arranged his departure from Tehran to verify his assertion that he left using a fake passport.  The member indicated that he would not require the applicant to attempt to do so as he ‘… would be very surprised if any people smugglers would respond to that’.

57                  However, s 426 does not impose an obligation on the RRT to call all witnesses referred to by applicants.  There are obvious and good reasons why the subsection is in its terms.  The costs and inefficiencies that might follow from compelling the RRT to call all witnesses which an applicant sought to have called would frustrate the review system and lead to great delays.  Nor is there anything to suggest that the RRT failed to have regard to the applicant’s wishes: W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398.

58                  In W360/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 211, the Full Court of this Court considered whether the RRT’s failure to call a witness to depose to the circumstances in which an applicant had left Iran amounted to a jurisdictional error.  Carr J, with whom Lee and Finkelstein JJ agreed, held that, in the particular circumstances, the failure amounted to a denial of procedural fairness and jurisdictional error.  Carr J said at [29]-[31]:

‘[The RRT’s] reasons disclose, in my opinion, that the Tribunal, having reached credibility findings against the appellant on other matters, sought to reconstruct what might have been the evidence given by Mr Ramezani and has stated that that evidence would not overcome the problem with the appellant’s evidence which it had earlier identified.

In my opinion, in doing so the Tribunal so misconducted itself as to havefallen into jurisdictional error.  It deprived itself of the opportunity to consider relevant evidence having the capacity to corroborate the appellant’sclaim in a material respect …

The Tribunal should have heard the evidence from Mr Ramezani about the appellant’s illegal departure from Iran.  It should have decided whether it was going to believe that evidence or not.  If it did accept that the appellant had left Iran illegally, it would have had to have considered why he would have done that.’

59                  Where there is a claim of procedural unfairness of this kind it is relevant to ask whether or not the RRT’s failure to call the applicant’s witnesses led to a denial of procedural fairness.  In Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 195 ALR 502, Gleeson CJ said at 511 ‘[f]airness is not an abstract concept.  It is essentially practical.  Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice.’

60                  In this hearing before the RRT, although the member found that he was not satisfied the applicant left Iran illegally, he did consider whether the applicant faced a real chance of persecution assuming he did leave illegally.  In those circumstances, the RRT did not fall into error in failing to call any of the witnesses referred to by the applicant on his hearing invitation form: NAHN v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 247.  Even had the evidence been led before the RRT, no practical injustice was suffered by the applicant because the member considered the applicant’s claim on the alternative basis that he had left Iran unlawfully.  This is not a case where it can be said that the RRT has fallen into error in failing to avail itself of evidence which might corroborate the applicant’s claims:  see eg W412/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 99.

61                  In this case, because the RRT assessed the applicant’s case upon the assumption that he did leave Iran illegally, the RRT’s failure to call the witnesses listed by the applicant cannot have resulted in any practical injustice.

62                  Several other matters were raised by Mr Woodcock in the course of the hearing, but were abandoned after his attention was directed to documents which supported the RRT’s reasons.

63                  Ground 3 must fail.

64                  The application must be dismissed.

Associate:

Dated:              6 December 2004