FEDERAL COURT OF AUSTRALIA

SCAF v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 237

SCAF v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

No SAD 216 of 2004

FINN J

ADELAIDE

14 MARCH 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant pay the respondent’s costs. 

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

1                     The instruction of the High Court in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 that courts in judicial review proceedings should not overzealously scrutinise the reasons of an administrative decision-maker in the quest of discerning some inadequacy from the way in which those reasons are expressed, has a particular salience in this matter.

2                     The appellant applied unsuccessfully for a protection visa and sought review of that decision, again unsuccessfully, in the Refugee Review Tribunal (“the Tribunal”).  His application for an order of review of the Tribunal’s decision was rejected by Mead FM.  He now appeals to this Court from her Honour’s decision.

FACTUAL SETTING

3                     It is necessary to refer in some detail to the factual setting given the Tribunal’s approach to the material before it.

4                     The appellant is an Iranian citizen.  He claims to be of Arab ethnicity and a Shia.  He arrived in Australia on 31 December 2000 whereupon he was detained as an unlawful non-citizen. 

(i)        The arrival interview

5                     On 13 January 2001 an officer of the respondent interviewed the appellant with the assistance of an interpreter.  The appellant was given an opportunity to state why he should not be removed from Australia.  Before the interview commenced he was told that he was expected to give true and correct answers and was warned that providing different information at any future interview could raise doubts as to his reliability.

6                     When asked during the interview why he left Iran, he answered that the “main reason [was] due to lack of freedom and employment prospect[s]”.  He indicated that he received a very low rate of pay working in his brother’s shop and found it difficult to progress.  He stated that he was, as a young man, prevented from entering a recreation park.  He could not walk around with his girlfriend without questioning from the “moral discipline group” for not following social etiquette.  He summarised his reasons for leaving Iran as follows:

“Young people in country towns are not valued enough and do not have means of entertainment.  This is why I decided to migrate to Australia.  I came here to have means of progress for myself to have prospects.  This is why I left.  This is it.”

7                     The appellant said he chose to come to Australia because he had “heard a lot of good things.  There is freedom here and they accept mygrants.  And individuals are respected here.”  He said there was no reason for not wishing to return to Iran and continued:

“I would not have left Iran if we had freedom and prospects.  Time and human beings are not valued much in Iran.  This is why I left my country.”

He also stated that neither he nor his family was involved in activities against the Iranian government and had not had any contact with police or security/intelligence organisations. 

(ii)       The protection visa application

8                     This was dated 24 July 2001 and was accompanied by a statement which indicated why he left Iran and why he feared returning to that country.  This statement was quite different in character from what he conveyed in his arrival interview.

9                     After explaining that his family had lived in, but were expelled from, Iraq to Iran, he describes the events leading to their settlement near Ahwaz where the family purchased 20 hectares of land.  The substance of his statement was contained in the following:

“In February 2000 (11^th month 1378) a few Engineers came from the department of agriculture along with the military forces.  They said that this land belonged to the government and was regarded as government property and that they could take this land from us.  All of my brothers are illiterate, I am the only one who is literate.  My father and I were taken to the military headquarters and told to sign a form, otherwise we would be regarded as breaking the law and we would be sent to prison.  We were given a week in which to decide whether or not to sign the documents.  During this time we were detained.  We refused to sign the documents.  We said that the land was our land.  My father and I and a few other people were detained in that station for one month.

After one months detention we were blindfolded and taken to another place.  The authorities kicked us and swore at us.  We were forced to sign the forms.  After a while we were freed.

The government took the land and fenced it.  There was heavy clash between people and the military forces and some people were killed.  My brother was killed.  It was our land and we farmed that land, but the government had more power.

About five or six months before I left Iran my father told me to go and live with my paternal uncle, Mohammad Gomravi because he said my life was in danger.  I stayed there for one month.  I heard that some of my friends were arrested because they had torched the land that had been taken by the authorities and they had clashed with the authorities.  It was a heavy clash.  My brother, Ahmad, was killed.  I was not there at the time, but the authorities believed that I had been there.

Frequently the authorities came to our home and threatened my father, my mother and my brother that if they didn’t deliver me to the authorities, one of my brothers would be imprisoned.  The authorities believed that I had participated in the riots and clash, although I had not been.  Because of this I feared for my life and fled Iran.  It is safe for the rest of my family to stay in Iran because they do not have a record with the authorities believed that I had been involved in the clash, my name is with them and my life is in danger. 

My parents managed to get some money, which they paid to the smuggler to get me out of the country from Mehrabad (Tehran) airport.

Since I have left Iran I have spoken to my family.  They told me that my brother, Ali, was killed after I left Iran when he was involved in another dispute over the land.

Additionally, Arabs in Ahwaz are regarded as second class people, and are discriminated against and ridiculed.  Arabs are persecuted within the community.  For example, the Iranian authorities made a film called ‘Arroseh Atas’ (which means ‘The bride of fire’).  By making the film, the authorities were saying that all the traditions and beliefs of Arabs are only superstitions, and were not true.  They ridiculed our beliefs and traditions.  This is against the rules of the Iranian regime.  According to the Islamic rule, all the people of any group or race are equal.  Unfortunately we did not see this acted on.  The Arab people objected to the film.  The local Arabic newspaper printed with an article asking the authorities to require the people who made the film to apologise.  It was reported to the local member and to parliament but the government didn’t do anything about this.”

10                  He later provided a translation from a newspaper which dealt both with the taking of land in the Ahwaz region for use in a sugar cane project and with the resistance of Arab landholders to this which resulted in violence.

11                  It is clear from the application, and it was understood by the Tribunal to be the case, that the appellant’s claims had two Convention-based foundations:  the first, that he has been imputed with an anti-government political opinion because of his involvement in the clashes caused by opposition to the forced resumption of land and will be harmed by the authorities for that reason;  and the second, that he will be harmed by the authorities because of his Arab ethnicity. 

(iii)      The s 424A response

12                  On 13 December 2001 the Tribunal sent a notice to the appellant in accordance with s 424A of the Migration Act 1958 (Cth) (“the Act”) inviting his comments on information which it indicated would, subject to his comments, be the reason or part of the reason for deciding he was not entitled to a protection visa.  That information related (a) to the inconsistency between his arrival interview and the statement accompanying his visa application;  and (b) independent information concerning measures taken by Iranian authorities to prevent persons departing Iran using travel documents who were of adverse interest to the authorities. 

13                  The appellant’s response (via his lawyer) was (inter alia) that:

“1.       Entry Interview

The applicant maintains that at the entry interview he was very concerned that the tape of the interview or its contents would be made known to the Iranian authorities and that he or his family would consequently suffer harm.  Therefore the applicant did not even in a general sense refer to the more sensitive anti-government aspects of his claims.  It was not until later when the applicant listened to the former immigration officer he calls ‘Mr Tony’ that he learned that the information would not be disclosed to the Iranian authorities.

The applicant further instructs that prior to the entry interview he was told by the smuggler that he did not have to say everything at the first interview.  To compound matters the applicant was scared, tired and mentally drained at the entry interview and was told that the most important interview was the second interview where he could make his claims in detail.  Moreover when asked about his family details the applicant instructs that he was told by the interpreter that it was not necessary to mention details concerning his deceased brothers.  Therefore the applicant did not provide as much detail at the first interview as at the subsequent interviews.

2.                  Illegal Departure

The applicant acknowledges that he departed Iran illegally.  However he maintains that he was able to leave the country because the name on the passport arranged with the smuggler was not his, rather it was his photo on another person’s apparently otherwise legal passport.  That person’s name was ‘Mohammad Nissi’.  The applicant instructs that he paid the smuggler for this passport.

We note that the entry interview records that the applicant answered that the passport was genuine, however we refer to the above discussion as to the basis of the applicant’s answer that the passport was apparently genuine but with his photograph substituted to clarify his answer.”

(iv)       Evidence to the Tribunal

14                  The appellant gave evidence at two hearings before the Tribunal, the first hearing being adjourned when he “became agitated and broke down and … was unable to give any more evidence” when the Tribunal tried to question him about the information he gave at the arrival interview.

15                  The Tribunal took evidence from two witnesses both of whom the appellant met in detention centres for the first time.  While each was able to give independent evidence of events in Ahwaz to which the appellant referred in his application statement and evidence, neither was able to give independent evidence of the appellant’s involvement in such events nor of the Iranian authorities’ attitude or actions towards him.

16                  The transcript of their evidence has been tendered in this proceeding and counsel for the appellant, Dr Bleeby, has taken me to it to establish that both witnesses gave evidence on matters which was not dependant upon what they may have been told by the appellant.  I do not consider it necessary to set out that evidence in detail.  It related to the death of the appellant’s brother and to the clashes between civilians and the military over the resumed land. 

THE TRIBUNAL’S DECISION

17                  The Tribunal rejected the appellant’s application for the reason that his claims were not believed.  In so doing it highlighted a pattern of inconsistencies in his evidence but particularly the inconsistency between his arrival interview and the statement accompanying his visa application.

18                  The Tribunal (i) did not accept the appellant’s explanations for his failure to mention or even to allude to the claims he made six months after his arrival interview;  and (ii) found that the appellant fabricated his claims regarding the confiscation of land, his involvement in the anti-government riots and his claims that he was wanted by the authorities.

19                  It was fortified in the latter finding by (a) inconsistencies in evidence he gave relating to alleged detention by the police (which was not accepted) and (b) inconsistencies relating to the passport on which he travelled to Australia, the Tribunal noting that he made three different claims concerning the passport, i.e. it was genuine, it was a false document and it was genuine but with someone else’s name and his photograph.  The Tribunal concluded that the appellant’s statement made at the arrival interview that his passport was genuine was the truth.

20                  In light of country evidence concerning the virtual impossibility of leaving Iran on genuine travel documents if one was of interest to the authorities the Tribunal went on to find that:

“… at the time of his legal departure from Iran, the applicant was not wanted by the Iranian authorities and that they had no adverse interest in him.”

The Tribunal then observed:

“To the extent that the applicant’s witnesses gave supporting evidence on behalf of the applicant, the Tribunal gives no weight to the evidence of the witnesses as their knowledge of the applicant’s circumstances was based entirely on what the applicant told them. 

Having considered all these matters cumulatively, the Tribunal finds that the applicant did not come to the adverse attention of the Iranian authorities and that he is not wanted by them for reasons of his imputed or actual political opinion. 

The Tribunal finds that the claims made by the applicant of discrimination against Arabs were made in the context of his later claims which the Tribunal has already found were a fabrication.  The Tribunal finds that they were made to bolster his claim for a protection visa.  The Tribunal finds that the comments made by the applicant at the entry interview indicate the true reasons he left Iran.  The Tribunal finds that they do not support a conclusion that the applicant faces a real chance of treatment which would be so serious as to amount to persecution in the Convention sense.”

21                  I have emphasised the first of the above paragraphs as the appellant’s case is founded on it. 

22                  Finding that the appellant does not have a well-founded fear of persecution should he return to Iran now or in the reasonably foreseeable future, the Tribunal affirmed the decision not to grant a protection visa. 

THE FEDERAL MAGISTRATE’S DECISION

23                  Given the grounds of appeal (which relate to matters also raised before the Federal Magistrate), I need only indicate that she was unable to find any grounds which could support a claim that the Tribunal’s decision should be the subject of judicial review.

THE PRESENT APPEAL

24                  Put shortly, the principal ground of appeal is that the Tribunal erred in its treatment of (i.e. giving “no weight to”) the appellant’s witnesses’ evidence.  Not all of their evidence was based entirely on what the appellant told them and for that reason could not be disregarded.  Some related to matters other than what had been told to them of “the applicant’s circumstances”.  The Tribunal was required to take all of the evidence into account before reaching any view about the appellant’s credibility, the more so as the witnesses’ independent evidence corroborated aspects of the appellant’s evidence and had every potential to affect the credibility finding.

25                  The Tribunal’s jurisdictional error, it is said, lay in its failure to take that independent evidence into account.

26                  Distinctly, that independent evidence corroborated the appellant’s claim of persecution based on his Arab ethnicity.  The Tribunal failed to make any finding as to whether the appellant was an Arab from the Ahwaz region.  A finding whether such was the case based on all the evidence and whether Arabs in that region were persecuted was required by s 36(2) of the Act.

(i)        The “no weight” ground

27                  There is, in my view, a short answer to this contention.  From at least the time of the s 424A notice to the appellant, it was obvious that the appellant’s credibility was in issue before the Tribunal and that inconsistencies in his descriptions of his own circumstances and actions were the cause of this.  The Tribunal’s reasoning tracked those inconsistencies and his explanations of them in the context of its consideration of his claim that he had come to the adverse attention of the Iranian authorities for reasons of imputed or actual political opinion.

28                  It is fair to say that the appellant’s claims failed at the first hurdle of his own making which was his failure to provide a convincing explanation for his not making reference to his claims of persecution at his arrival interview.  Inconsistencies in the stated length of his alleged detention by police “fortified” the Tribunal’s view that his claims were fabricated.

29                  The Tribunal then turned distinctly to the topic of the appellant’s passport and his credibility, which provided an independent reason for rejecting his claim.  It was in this context that it made the positive findings that he travelled to Australia on his own, genuine passport and that he was not of adverse interest to the Iranian authorities.  If he had been his name would have been on a black list.

30                  It was after making these findings that the Tribunal indicated that it gave no weight to the evidence of the appellant’s witnesses “as their knowledge of the [appellant’s] circumstances was based entirely on what the [appellant] told them”.

31                  It is important, in fairness to the Tribunal, to emphasise the issue with which the Tribunal had been immediately concerned before it made the “no weight” determination.  That issue related to which of three different versions he gave of the genuineness or otherwise of the passport he travelled on to Australia was correct.  Having found that his first version, i.e. he travelled on a genuine passport, was correct, the Tribunal was led in consequence by country information to the independent conclusion that he was not of adverse interest to the Iranian authorities.

32                  The evidence of the two witnesses related in part, but only in part, to their knowledge of the appellant’s circumstances based on what he had told them.  To that extent the Tribunal could quite properly say it would not give weight to that “part” of their evidence for that reason.  However, on its face the Tribunal’s reasons appear to be rejecting all of the witnesses’ evidence for that reason.  It is clear that other parts of their evidence were unrelated to the appellant’s circumstances and were independent and impersonal of him in that those parts related to matters which formed part of the context – i.e. the land take over, the subsequent riots, the appellant’s brother’s death – in which the appellant had sought to locate some of his claims.  Whether or not that “independent evidence” was accurate, it had no immediate bearing on the issue that had led to the Tribunal’s “no adverse interest” finding.  The Tribunal’s concern was with the appellant’s departure from Iran and what this said of the authorities’ view of him.

33                  It is the case, though, that the witnesses’ independent evidence might have supported findings about the context (to which I referred above) of some of the appellant’s claims.  The Tribunal rejected those claims – i.e. his involvement in opposing the land acquisition – because it believed his story was fabricated for the reasons it gave.  It was thus unnecessary for the Tribunal to make findings relating to the appellant’s family’s landholding, its confiscation or take over, etc.  Yet these were the matters to which the independent evidence related.

34                  Turning directly to the “no weight” determination it has to be said that its language is unfortunate.  It reads very much as a dismissive and somewhat ill-conceived afterthought.  Nonetheless, read in the context of the reasons as a whole and of the Tribunal’s approach to the appellant’s evidence through his inconsistencies, it bears an innocent complexion in my view.

35                  The Tribunal’s focus, as I have indicated, was on what could be described as the appellant’s “personal circumstances” because of the inconsistencies in his description of events in which he claims to have been involved, in his reasons for leaving Iran, and in the manner of his leaving.  The witnesses could not give independent evidence on these matters.  It was to this state of affairs that I consider the “no weight” determination was intended to be addressed.  The Tribunal had no wider concern with the witnesses’ evidence.  Accordingly, I do not consider that the determination suffered the vice attributed to it though it, doubtless, was inaptly phrased as the respondent accepts.

36                  Accordingly I would reject this ground of appeal.

(ii)       The ethnicity ground

37                  The second ground is based on the alleged failure properly to deal with the Arab ethnicity claim.  This ground, in my view, falls because of the findings made in relation to the appellant’s true reasons for leaving Iran given in the arrival interview which were not Convention-related, even if they bespoke conditions the appellant found irksome.  The Tribunal characterised the ethnic discrimination claim as having been made (a) in the context of his other claims which were found to be fabricated and (b) for the purpose of bolstering his claim for a protection visa.  Though there was evidence of some degree of discrimination against Arabs in Ahwaz, including that given by one of the two witnesses, the Tribunal appears inferentially to have characterised any such treatment as not being “so serious as to amount to persecution in the Convention sense”.  I would add to this that implicit in the manner in which the Tribunal characterised the ethnicity claim and the appellant’s “true reasons” for leaving Iran is a finding that he did not in fact have a subjective fear of persecution as an Arab in Ahwaz in any event. 

CONCLUSION

38                  I will order that the appeal be dismissed with costs. 

Associate:

Dated:              14 March 2005