FEDERAL COURT OF AUSTRALIA

MZZHA v Minister for Immigration and Border Protection [2014] FCA 814

THE COURT ORDERS THAT:

1.    The appeal is dismissed.

2.    The appellant is to pay the first respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    Before the Court is an appeal from orders made by the Federal Circuit Court on 10 February 2014. The Federal Circuit Court dismissed an application by the appellant for a review of a decision of the Refugee Review Tribunal made on 11 January 2013. The Tribunal affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Border Protection, not to grant the appellant a protection visa.

2    The appellant is a citizen of Iran. He was born in 1988. He arrived in Australia on 19 February 2012. The appellant claimed to fear persecution on the ground of his political opinion and religion. As a result of three alcohol-related incidents and several other encounters with Iranian authorities, the appellant feared that he would be viewed as an apostate because he did not live a strictly Islamic lifestyle. He said that he would be sentenced to death on return to Iran because he had already been convicted of two alcohol-related offences and a conviction on the third offence would attract the death penalty.

3    The Tribunal found that the appellant was not a credible or truthful witness. The Tribunal rejected his evidence that he had been arrested for three alcohol-related offences. The reasoning of the Tribunal in relation to those offences was as follows:

91.    I also do not accept his accounts regarding his three arrests for alcohol possession. His first account of his arrest lacked credibility. Firstly, I do not accept that a police car would follow a car with four people in it and not seek to pull it over by driving behind it and flashing its lights, and instead executed a manoeuvre that placed the police car in front and perpendicular to the car in which the client was a passenger. I also find it lacks credibility that the applicant would, in a very drunk state be able to outrun two sober police officers for 3-500 metres before being stopped.

92.    I also do not accept that the police would, having stopped the car for a reason, then allow the car with the driver and two other passengers to escape by driving past the police car without the police giving chase. I also do not accept that if the police were interested enough in the car to stop it that they would have failed to note the car’s registration number and sought to question the owner of the car following the incident, particularly given the claim that it had driven away after being stopped and only one passenger was detained.

…

95.    I do not accept the claim that he was arrested at Anzali for drinking alcohol because of the unexplained inconsistencies in his claim. In his statutory declaration he claimed the incident occurred in early 2009 and that he was staying in a rented cabin with friends when the Basiji raided the cabin and found alcohol there. In his hearing he claimed the incident occurred in June/July 2008 and that a single police officer had found him and his friends drinking alcohol next to a BBQ. He initially denied that he had claimed that the Basij were involved but then claimed that perhaps he had mixed up the story with another incident. I also find it implausible that a single officer would be patrolling such an isolated area alone and on foot.

96.    I do not accept his third claim regarding the arrest for alcohol. Country information indicates that individuals may be barred from traveling abroad, but only if an active prosecution case is underway and the individual is free on a third-party financial guarantee. The fact that the applicant was able to travel overseas using his own passport would not have been possible given he was the subject of a third-person financial guarantee. I do not accept his claim that this did not apply to alcohol-related cases. The post-hearing submission provided country information to support the claim, however I lend it little weight. It referred to the ability of dissidents subject to exit bans, as opposed to people subject to criminal cases to leave the country due to bureaucratic inefficiencies. It is also three years older than the country information available to the Tribunal. The submission also refers to the performance of the Basij in dealings with dissidents, which is not relevant to the applicant’s circumstances.

    [Footnotes omitted.]

4    The Tribunal then dealt with three documents which were submitted by the appellant after the hearing. The nature of the documents was described thus:

97.    The applicant was asked to provide documentary evidence, such as the court documents relating to the receipt for the title of his family house or notices of his conviction. He claimed that he did not have any notices of conviction. In his post-hearing submission, copies of documents were provided that he claimed were a title deed to the house indicating that it had been seized, a 2010 notice of conviction for alcohol consumption and disturbing the public order and a summons for the verdict to be carried out.

5    The Tribunal gave the following consideration to the documents:

98.    I lend little weight to these documents for the following reasons:

a.    DFAT has indicated that it is possible to obtain forged court documents in Iran; the applicant claimed in his hearing that he had no notices of conviction but subsequently produced what he claimed was such a notice;

b.    He claimed during his hearing that he did not find out the court date on which he was due to attend as he left before it arrived, however, the document he proffered post-hearing stated the trial date was 19 May 2010, the summons was dated 3 October 2010 and his personal particulars form on entry to Australia stated that he left Iran around 31 December 2010;

c.    He claimed to fear persecution because he had been convicted for a third time for consuming alcohol and yet the court verdict that he offered stated that he had no previous criminal records;

d.    The title deed is a poor copy but does not refer to the case for which it has been used, there is no noting that it had been released even though the case for which the applicant claimed it was used as surety was concluded several years previously, and there is reference to a divorce registration and date even though there is no reference by the applicant to the fact that his parents are divorced.

    [Footnotes omitted.]

6    Then the Tribunal referred to evidence of physical harm inflicted on the appellant as follows:

99.    The applicant offered photos of what he claimed were welts on his back and the rear of his legs as the result of a lashing he received. The applicant claimed that they were taken approximately one month after he was lashed for the first or second time. I accept that they demonstrate that the applicant has been subjected to lashings at some stage. Given that I do not accept his accounts of his arrest and detention by authorities, the lashing must have occurred for some offence not mentioned.

100.    Regardless, the photos indicate that whatever act he had been sentence [sic] for had been finalised as a result of the lashing. This is supported by [the] fact that the applicant was able to leave Iran on his own passport which indicates that he was not wanted by authorities.

7    And finally, the Tribunal dealt separately with a claim for complementary protection as follows:

111.    Because I do not accept that the applicant was arrested for drinking alcohol, detained and lashed by the Basij for eating during Ramadan, detained and tortured by the police as a suspected thief, or has or is likely to come to the attention of Iranian authorities for his non-observance of Islam, has a drug or alcohol addiction or is a regular consumer of alcohol I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm.

112.    While I have accepted that the applicant has been lashed for some crime committed previously this action would have concluded the legal proceedings for that action. Because I have found that the applicant is not wanted by the Iranian authorities or subject to any outstanding legal action in Iran, I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Iran, there is a real risk that the applicant will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

8    The Federal Circuit Court considered and rejected five arguments which were advanced by the appellant. The appellant contended on the appeal in this Court that the Federal Circuit Court had wrongly rejected each of these arguments. They will now be considered in turn.

The future harm issues

A. Failure to assess the risk of future harm

9    The appellant contended that the Tribunal erred in its approach to the determination of the criterion required for the grant of a protection visa under s 36(2)(aa) of the Migration Act 1958 (Cth) (the Act), namely, whether there was a real risk that the appellant would suffer significant harm if removed from Australia. It was common ground between the parties that the ‘real risk’ of harm is the same as the ‘real chance’ of harm as explained in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 (see Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505; [2010] FCAFC 33). The appellant relied on the judgment of Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ in Minister for Immigration v Guo (1997) 191 CLR 559; [1997] HCA 22 (Guo), which explained the approach to the assessment of a real chance of harm at 574-5 as follows:

The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.

…

In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.

10    The appellant argued that the Tribunal failed to engage in the process described in Guo.

11    The Tribunal accepted that the appellant had been lashed at some stage, but found that it was not for any of the offences which the appellant had claimed. The appellant contended that in order to assess the real risk of this harm occurring in the future, the Tribunal was bound to consider and identify the law which the appellant had breached and the events which led the Iranian authorities to find that the appellant had breached the law. Without examining those factors, the Tribunal had not made an assessment of the risk of harm to the appellant in the future.

12    This argument as formulated does not take account of the full extent of the reasoning of the Tribunal. The Tribunal found that the appellant was permitted by the authorities to leave Iran using his own passport. On the evidence available to the Tribunal, had he been wanted for the third alcohol-related offence the appellant would not have been able to leave Iran. Consequently, the Tribunal found that the appellant was not of interest to the authorities for any contravention of the law. This conclusion responded to the case which the appellant had made to the Tribunal that he was in danger of punishment in the future because he was known to the authorities for his illegal conduct. Once that foundation of his claim was rejected, it followed that there was no basis on which to find that there was a risk of future harm arising from the events on which the appellant relied.

B. Irrationality

13    Then the appellant submitted that the Tribunal’s conclusion that there was no real risk of harm to him in the future was irrational. For the purpose of this argument the appellant accepted the findings of the Tribunal that he had not been arrested for drinking alcohol or come to the attention of the authorities for eating during Ramadan or for a theft as he had alleged, that he had not nor was likely to come to the attention of the authorities for his non-observance of Islam, that he did not have a drug or alcohol addiction and was not a regular consumer of alcohol, and that he had been able to leave Iran on his own passport, was not wanted by the authorities, nor was subject to any outstanding legal action in Iran. However, so it was argued, in view of the Tribunal’s finding that the appellant had been lashed, its conclusion that there was no real risk to him in the future depended on the further finding that the matter which resulted in the lashing had been concluded. The appellant argued that the findings which were accepted by him for the purposes of the argument did not provide a rational basis for concluding that the appellant would not be exposed to the same risk of harm in the future. He argued that there was nothing in the rejection of his claims which could lead the Tribunal to find that the circumstances which led to the appellant being convicted and lashed would not occur again.

14    This argument should not be accepted. The findings which the appellant accepted for the purpose of the argument addressed the reasons which he advanced as the basis upon which there existed a real risk of harm to him in the future. The Tribunal rejected each of the reasons which the appellant advanced, but accepted that he had been lashed. The Tribunal then had to determine whether there was a real risk that this punishment would be repeated in the future. The circumstances relied on by the appellant as the reason why there might be a risk to him in the future had been rejected. The Tribunal was not required to speculate as to the offence which was the cause of the lashings, or to assume that the appellant was likely to recommit this unknown crime. Nor was the Tribunal required to make further inquiries in order to ascertain the appellant’s case: Minister for Immigration v SZIAI (2009) 259 ALR 429; [2009] HCA 39 (SZIAI); Minister for Immigration v VSAF of 2003 [2005] FCAFC 73; Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; [2004] HCA 32. This was not a case in which the Tribunal failed to make an obvious inquiry about a critical fact, the existence of which could be easily ascertained: SZIAI at [19]-[25]. It was up to the appellant to put his version of events to the Tribunal, which he did and which the Tribunal rejected for the reasons set out at [3] of these reasons.

15    The Tribunal regarded the fact that the appellant was able to leave Iran on his own passport as evidence that he was not of interest to the authorities, and that consequently, whatever circumstances led to the lashing were concluded. The lashing had no ongoing relevance to the risk of harm in the future. In view of the issues raised by the appellant before the Tribunal, this was a logical conclusion on the material before it.

The natural justice issues

A. The lashing finding

16    The appellant claimed that he was denied natural justice because the Tribunal found that he had been subjected to lashing, although not for the offences which he claimed, but the Tribunal did not tell him that it intended to make that finding.

17    The denial of natural justice was put in two ways. First, it was contended that the appellant was entitled to an opportunity to be heard on whether, arising from the Tribunal’s conclusion that he was lashed, the lashing was for a different offence, and on what might follow from such a finding. Second, it was contended that he was entitled to be heard on the issue because it was a surprise; it was not obviously open on the known material.

18    The appellant argued that the source of the natural justice obligations of the Tribunal was the common law as expressed in Commissioner for the Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-2; [1994] FCA 1074 at [30] (Alphaone) as follows:

Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material.

19    The first respondent contended that the source of the natural justice obligations of the Tribunal is to be found in the provisions of the Act. Section 422B(1) of the Act provides:

(1)     This Division [Division 4] is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.

20    That section has the effect that if there are provisions in Division 4 which prescribe natural justice hearing rule obligations, then those provisions are exhaustive in relation to the matters with which they deal. The first respondent submitted that s 425(1) makes provision for certain elements of the natural justice hearing rule. That section provides:

(1)    The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

21    The first respondent said that this conclusion followed from Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 (Saeed). That case concerned the requirements of the natural justice hearing rule as applied to the Minister’s decision to grant or refuse a visa. Section 51A of the Act was relevantly in the same terms as s 422B. One question was whether s 57 of the Act was an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which it dealt. Section 57 provided:

(1)    In this section, relevant information means information (other than non-disclosable information) that the Minister considers:

(a)    would be the reason, or a part of the reason, for refusing to grant a visa; and

(b)    is specifically about the applicant or another person and is not just about a class of persons of which the applicant or other person is a member; and

(c)    was not given by the applicant for the purpose of the application.

(2)    Subject to subsection (3), the Minister must:

(a)    give particulars of the relevant information to the applicant in the way that the Minister considers appropriate in the circumstances; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to consideration of the application; and

(c)    invite the applicant to comment on it.

(3)    This section does not apply in relation to an application for a visa unless:

(a)    the visa can be granted when the applicant is in the migration zone; and

(b)    this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa.

22     The High Court said at [18]-[20]:

18.    Section 57(1) and (2) invite comparison with what might ordinarily be required by the hearing rule. It is necessary to bear in mind, in that regard, that what is required to provide procedural fairness according to the rule will vary. Natural justice is flexible and adaptable to the circumstances of the particular case.

19.    Brennan J in Kioa v West said that, in the ordinary case, an opportunity should be given to a person affected by a decision to deal with any adverse information that is “credible, relevant and significant”. That approach has more recently been confirmed in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs. Mason J in Kioa v West went further. In his Honour’s view the common law would require the decision-maker to bring the critical issue or factor on which the decision was likely to turn to the attention of the person. Brennan J’s approach would not deny that this may be necessary in a particular case.

20.    The requirements of s 57(1)(a) and (2)(b) are similar to those referred to by Mason J.

[Footnotes omitted.]

23    The High Court concluded at [40]:

Necessarily, provisions which “deal with” “matters”, for the purposes of s 51A, will contain some procedural requirements which go some way towards satisfying the fundamental requirements of the natural justice hearing rule. Some such procedural requirements are necessary if s 51A is to operate and the procedures provided for are to be taken as exhaustive of the rule. Section 57 contains such procedures.

24    In contrast, the High Court said that s 51A did not engage with s 56. Section 56 provided:

(1)    In considering an application for a visa, the Minister may, if he or she wants to, get any information that he or she considers relevant but, if the Minister gets such information, the Minister must have regard to that information in making the decision whether to grant or refuse the visa.

(2)    Without limiting subsection (1), the Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way.

    [Emphasis added.]

25    The High Court said at [23]:

It remains to mention the procedures provided by s 56. It may be observed that an invitation under s 56(2) might allow for a response to adverse information by the exercise of the power to obtain additional information. The power given by s 56 is not expressed in terms which would oblige its exercise by the Minister in order that an opportunity for comment could be provided to a visa applicant. Nevertheless, as Gaudron J observed in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah, where the Minister has regard to information other than that provided by an applicant, a question may arise whether procedural fairness requires that the powers in s 56(2) must be exercised to permit an applicant to put submissions or provide further information.

[Emphasis added.]

[Footnotes omitted.]

26    The High Court concluded at [40]:

The power given in s 56, to invite an applicant to give further information, may be used to further procedural fairness but it does not mandate procedures which may be taken as a substitute for the requirements of the rule. Section 51A is not addressed to s 56.

[Emphasis added.]

27    The appellant argued that s 422B did not engage with s 425(1) for the same reason that the High Court held that s 51A did not engage with s 56. In neither case, the appellant said, did the relevant section mandate a procedure which may be taken as a substitute for the requirements of the hearing rule.

28    This argument seems to lay emphasis on the suggestion that s 425(1) does not provide for a detailed procedure in the way that s 57 did. But this emphasis is to misunderstand the passage in the judgment of the High Court. The focus of the reasoning in Saeed was on the fact that the provisions of s 57 were mandatory whilst the provisions of s 56 were not. That the Court was not drawing a distinction between the two sections on the basis that s 57 established a procedure and s 56 did not is clear from the passage extracted at [25] of these reasons, which speaks of the “procedures provided by s 56”.

29    In any event, there is independent authority that s 425(1) makes provision for the requirements of the natural justice hearing rule. In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 (SZBEL) an Iranian seaman applied for a protection visa. He relied on three events to substantiate his fear of persecution. The delegate doubted the accuracy of one of the events but not of the other two. Then the Tribunal questioned him about the one event but said nothing about the other two events. In its decision, the Tribunal rejected evidence about the two events which had not been doubted by the delegate. The High Court explained the link between the common law hearing rule and the statutory scheme, which reflected the elements of the rule. The High Court said:

32.    In Alphaone the Full Court rightly said:

“It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material.”

33.    The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The reference to “the issues arising in relation to the decision under review” is important.

[Emphasis in original.]

[Footnotes omitted.]

30    Then, the High Court applied that reasoning to the case under consideration thus:

36.    … [U]nless the Tribunal tells the applicant something different, the applicant would be entitled to assume that the reasons given by the delegate for refusing to grant the application will identify the issues that arise in relation to that decision.

37.    That this is the consequence of the statutory scheme can be illustrated by taking a simple example. Suppose (as was the case here) the delegate concludes that the applicant for a protection visa is a national of a particular country (here, Iran). Absent any warning to the contrary from the Tribunal, there would be no issue in the Tribunal about nationality that could be described as an issue arising in relation to the decision under review. If the Tribunal invited the applicant to appear, said nothing about any possible doubt about the applicant's nationality, and then decided the review on the basis that the applicant was not a national of the country claimed, there would not have been compliance with s 425(1); the applicant would not have been accorded procedural fairness.

31    It follows from the reasoning in SZBEL that, as the first respondent contended, s 422B does engage with s 425(1) so that s 425(1) is an exhaustive statement of the hearing rule to the extent that it deals with it.

32    SZBEL is significant for the present case in another aspect. In SZBEL, as in this case, the appellant contended that the conclusion of the Tribunal that his story was not plausible was not obviously open on the known material, and the respondent in that case argued that the appellant’s complaint was simply about the mental processes by which the Tribunal arrived at its decision. The High Court explained at [31]:

Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged.

33    And said at [38]:

When it is said, in the present matter, that the appellant was not put on notice by the Tribunal that his account of certain events would be rejected as “implausible”, and that this conclusion was “not obviously ... open on the known material”, the focus of the contention must fall upon what was “obviously ... open” in the Tribunal’s review. That can be identified only by having regard to “the issues arising in relation to the decision under review”. It is those issues which will determine whether rejection of critical aspects of an applicant’s account of events was “obviously ... open on the known material”.

34    SZBEL therefore emphasises the need to focus on the statutory requirements where, as in this case, they apply. That means that the appellant was entitled to give evidence and present arguments relating to the issues arising in relation to the decision under review.

35    The first respondent contended that the hearing before the Tribunal indicated to the appellant that all issues concerning his claim were in contention. That included whether the appellant was convicted of the three alcohol-related offences as he claimed and, flowing from this, whether the lashings were for the offences.

36    The starting point is the decision of the delegate. The delegate found that the first two alcohol-related offences occurred, and that the appellant was punished by lashings for these two offences. Importantly, the delegate found that the appellant was not charged with the third offence and hence, was not lashed for it.

37    At the Tribunal hearing, the member explained at the start that he “would look at all the evidence again and make a fresh decision on your application”.

38    Then, in the first part of the hearing the Tribunal sought, by open questions, to have the appellant tell his story in sequence. As the appellant had more and more difficulty in articulating a coherent story, the Tribunal indicated its view that certain parts lacked specificity. For instance, the Tribunal said, “it is reasonable to expect that you know what year in high school you were in, so can you please be more specific”. At various points the Tribunal explained that it needed to assess the appellant’s credibility. When the appellant had difficulty placing the events in sequence, and said that he had forgotten some aspects, the Tribunal said:

Remember I said at the start, I am trying to access your credibility. If I say that there are, you’ve told me one thing that doesn’t tie in and then you say, righto I forgot, I’ve got another story to put it in, that may impact on my assessment of your credibility.

39    This intervention is representative of a number of similar comments made by the Tribunal member. As the appellant’s evidence became more disorganised, the Tribunal offered him a short break to organise his thoughts. The break was preceded by this important exchange:

Tribunal:     And I say again, this is important in order to assess your credibility. So I’m going to give you the opportunity to get straight in your mind what happened, when it happened.

Interpreter:     He said, the revisioner told us that the, the reason he went there today, is so he can talk about the reason that they rejection [sic] and to make him understand why it’s not.

Tribunal:     I told you at the start that it’s my, the job of this Tribunal is to examine your claim afresh. So I’m asking you to go through your claim to me afresh. It is no use getting frustrated at the system. If you have a story to tell and claims to make then it is in your interests to have a clear mind and to get them in order so that I can assess them and your credibility. Now I could just continue on with this hearing and you could be all over the place and it would not look good for your credibility. In order to, in order to fair [sic], I am breaking, I am having a break in this hearing, so you and your adviser can get your story straight.

40    After the adjournment the hearing continued with open questions allowing the appellant to tell his story.

41    In the final stage of the hearing the Tribunal raised a series of issues which challenged the appellant’s account of the events on which he relied. The Tribunal said that the appellant’s claims about his membership of Narcotics Anonymous ran counter to the country information, and invited the appellant to provide further evidence. Then, the Tribunal introduced a series of questions with the following:

I have some concerns about your accounts of how you were arrested and what occurred at the Courts.

42    Then followed detailed questioning by the Tribunal raising improbabilities, inconsistencies, and contentions which ran counter to country information. At the end of the hearing the Tribunal, not the appellant, raised the issue of the photos of injuries said to have resulted from lashings. The Tribunal invited the appellant or his adviser to make final submissions. The adviser then enquired whether the Tribunal accepted the photos. The Tribunal replied:

I’ll take it back and weigh it up with everything else that we’ve gone through…

43    The course of the hearing could not have left the appellant in any doubt that every element of his account was in issue. Indeed, the appellant’s submissions on the appeal accepted that the appellant’s account of the offences was put in issue by the Tribunal.

44    The appellant’s case was that the Tribunal put a new issue into play. That issue was whether the lashings were for other, unspecified offences.

45    However, the issues before the Tribunal remained the same, namely, whether the appellant had been charged with the three alcohol-related offences. Once the Tribunal rejected the evidence of the events relied upon by the appellant, it necessarily followed that the punishment, which he said resulted from the alcohol-related offences, had not occurred for those offences. Furthermore, this conclusion was an extension of the reasoning adopted by the delegate when he found that the third offence was not established, and hence, that any lashings could not relate to that offence. The first respondent was correct in his submission that the adverse conclusion was open on the known material. The Tribunal gave clear notice on a number of occasions that there was difficulty in accepting the appellant’s claim that he had committed the three alcohol-related offences and that he had been lashed for them. There was no breach of s 425(1) by the Tribunal in not advising the appellant that it intended to find that the lashings were not for the offences relied upon.

B. The documents

46    The hearing before the Tribunal was held on 7 December 2012. On 21 December 2012, the solicitors for the appellant sent to the Tribunal a written submission, including three documents described as the title deed to the appellant’s parents’ house, a judgment of the Tehran Public and Punitive Court, and a court notice requiring attendance at the Court for the verdict to be executed, together with translations of these documents. The Tribunal said that it lent little weight to the documents for the reasons set out in the extract at [5] of these reasons for judgment.

47    The appellant contended that the Tribunal denied him natural justice by failing to give him an opportunity to be heard in relation to the authenticity of the three documents. He said that the Tribunal, in substance, made a finding of forgery which required that he be given an opportunity to address this issue in a further hearing. He also said that the Tribunal, by saying that it would receive documents post-hearing, had indicated that the purposes of the review were not fulfilled.

48    The appellant relied on WACO v Minister for Immigration and Citizenship (2003) 131 FCR 511; [2003] FCAFC 171 (WACO). In that case, the appellant from Iran had claimed to fear persecution on the grounds of religion and political opinion. He said that he was associated with Ayatollah Shirazi, a reformist cleric, and was involved in exposing the involvement of the Supreme Leader in the murder of a critic, one Allameh Jafarri. In the course of the hearing, the Tribunal expressed doubt about the appellant’s evidence on this claim. The appellant said he would provide documentary evidence. After the hearing he produced two letters, one from Ayatollah Shirazi to the appellant’s father commending the appellant, and the other from a public official testifying to the appellant’s relationship with Ayatollah Shirazi. The Full Court observed at [13] that:

Both letters if accepted as genuine corroborated a critical element of the appellant’s claim.

49    The Tribunal did not give the appellant any indication that it doubted the genuineness of the letters.

50    The Full Court said at [42]:

The question raised here is whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant's comment (Abebe v Commonwealth of Australia (1999) 197 CLR 510 per Callinan J at 608). However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant's relationship with Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested.

[Emphasis added.]

51    The Full Court held that the appellant was denied procedural fairness. The reasons were explained thus:

53    In the present case […] the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant insofar as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence.

54    Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it.

52    The first respondent relied on a later judgment which sought to explain WACO. In Minister for Immigration v SZMOK (2009) 257 ALR 427; [2009] FCAFC 83 (SZMOK) the applicant claimed to have a high political profile in the Awami League in Bangladesh and feared harm from the BNP. In the course of evidence before the Tribunal, the applicant, for the first time, mentioned that a false case had been filed against him. The Tribunal was sceptical as explained by the Full Court at [34] as follows:

When asked when the case against him had been lodged, the applicant replied that he did [not] know the exact date but that it was an old case which commenced when the BNP was in power. The tribunal then pointed out to the applicant that he had not previously mentioned the false case to the department or to the tribunal and that he was introducing it then for the first time. The tribunal said that the details were very vague and that the tribunal may not accept the claim as being credible. The applicant replied that he did not mention it previously because he was unable to get any documents or any proper evidence about it to support his claim. The tribunal said that it would probably not accept the claim as credible because the applicant had not presented it consistently and did not have any details. The applicant replied that he had heard about the events and was unable to get any documents “from the other end” and that is why he did not mention it. He said that, if he was able to get documents from Bangladesh, he would be happy to provide them. The tribunal observed that the applicant should have organised all of that before he came to the hearing and that the tribunal was not prepared to give him time to go searching for documents.

53    The Tribunal gave the applicant a week to provide documents in support of the claim of false charges. The applicant then provided documents, but they did not disclose what charges had been brought against him. The Full Court continued at [48]:

The tribunal said that it had considered the impugned documents but that, in view of its finding that the applicant’s claims lack credibility, the tribunal was not satisfied that the impugned documents were genuine. The tribunal considered that there was no case against the applicant in Bangladesh and found that there could be no genuine documents relating to such a case. The tribunal therefore found that the impugned documents were fabricated by the applicant to enhance his protection visa application. The tribunal did not accept as credible the applicant’s claim that the case mentioned in the impugned documents exists. The tribunal did not accept as genuine the applicant’s claim that he is a person of interest to the authorities or government in Bangladesh because a politically motivated false case is pending against him. The tribunal was not satisfied that the impugned documents were genuine.

54    The Full Court then referred to the requirements of the hearing rule in relation to questions of genuineness of documents at [68] thus:

While the tribunal has a duty to raise clearly with an applicant the critical issues on which a review may depend, there is no general rule that the tribunal cannot make a finding that a document is not genuine without specifically referring to its concerns about the document. The circumstances may be such that the tribunal had sufficiently alerted an applicant to the doubts it had about the genuineness of all documents that the applicant had submitted. While a finding of forgery should not be lightly made, the circumstances of a particular case may be such that it would be unnecessary to afford a person affected by such a conclusion the opportunity of dealing with it. The decision of the Full Court in WACO’s Case turned upon the application of well known and established principles to the particular and peculiar circumstances of that case (VAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 117 at [64]). WACO’s Case does not establish any new principle.

[Emphasis added.]

55    The Full Court then concluded that there had been no denial of procedural fairness. It said:

69    … [I]t is clear that the tribunal had formed the view that the applicant was an unreliable witness and that the failure to advert to the alleged false charge against him, except during the course of the hearing, demonstrated that his claim was a fabrication. In the light of the exchanges that took place between the applicant and the tribunal at the hearing, there was no failure on the part of the tribunal to abide by the procedural code set out in Div 4, in not accepting the impugned documents as corroborating any part of the applicant’s claim to fear persecution in Bangladesh.

…

71    … [H]aving regard to the way in which the tribunal conducted the hearing, in circumstances where there was a total absence of any suggestion of false charges on the part of the applicant before the hearing, there was nothing unfair or unjust about the way in which the tribunal acted in applying Div 4.

…

73    The tribunal made it abundantly clear to the applicant that it did not believe the very late claim that he was then making. The tribunal was at first reluctant to give the applicant time to provide further material, because it was of the view that the applicant had made up the claim as he went along. It must have been abundantly clear to the applicant that, even if some documents were provided, the tribunal may not accept them.

74    In the circumstances of the present case, the tribunal had given the applicant the opportunity to give evidence and present arguments relating to the issues in relation to the decision under review. There was not an issue as to the authenticity of the impugned documents that were subsequently provided to the tribunal by the applicant. While there may have been an issue, raised by the applicant in the course of the hearing, as to whether there was [a] false charge brought against him in Bangladesh, he had been given ample opportunity to give evidence and present arguments relating to that issue, as the tribunal pointed out to him at the hearing.

    [Emphasis added.]

56    The first respondent in the present case argued that the issue to which the documents were directed, for the purposes of s 425(1), was whether the appellant had been charged with the three alcohol-related offences. Such an analysis was part of the Full Court’s reasoning in SZMOK. In that case at [74], the Full Court said, “[t]here was not an issue as to the authenticity of the impugned documents that were subsequently provided to the tribunal by the applicant.” The issue was whether there was a false charge, and whether the applicant had been heard on that issue. Similarly in the present case, the first respondent argued, the appellant was invited by the Tribunal at the hearing in accordance with s 425(1) to give evidence and arguments on the issue whether he had been charged with the alcohol-related offences. The documents were addressed to that issue, which was an extant issue and not a new issue.

57    In Minister for Immigration v SZKTI (2009) 238 CLR 489; [2009] HCA 30 (SZKTI), the question was whether the applicant was entitled to a further hearing in relation to information provided by a third party after the hearing. The High Court said at [51]:

Whether an issue must be raised with an applicant for the purposes of a further hearing under s 425(1) will depend on the circumstances of each case. Matters may arise requiring an invitation to a further hearing… Here [the] evidence was additional evidence about an extant issue; it did not constitute the raising of a new or additional issue such as to trigger the obligation to give another hearing.

58    And in SZIAI, the High Court considered whether the Tribunal was required to give the applicant in that case a further hearing pursuant to s 425(1), after a third party informed the Tribunal that certain documents the applicant had provided were forged. French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ held that:

To invite SZIAI to a further hearing pursuant to s 425 of the Migration Act would have been an empty exercise. There was no such obligation in any event… The letter did not raise a new issue in the sense that that term is used in s 425.

59    Whilst the issues which are relevant for the purpose of determining whether a further hearing is required are the issues arising in relation to the decision under review (s 425(1), SZBEL at [38]), the identification of the relevant issues may be made at a greater or lesser level of generality. Depending on the way the issues are identified will govern whether these principles are engaged or not. That this is so can be seen by comparing WACO and SZMOK.

60    In SZMOK “[t]here was not an issue of the impugned documents”, but rather an issue whether there was a false charge brought against the applicant. On this analysis, in WACO, there was an issue of whether the applicant had an association with Ayatollah Shirazi, but not an issue whether the impugned letters were genuine. The letters were, on this approach, additional evidence on an extant issue on which the applicant had been sufficiently heard. But, in WACO, the Full Court at [42] determined that there had been a denial of natural justice because, “the question whether the letters were genuine was a matter which went directly to the most critical issue in the case”.

61    This type of problem led Robertson J to say in SZRAE v Minister for Immigration and Citizenship [2012] FCA 916 at [44]:

Plainly much turns on the level of generality or particularity at which the issue is identified. In general, when credibility is in issue and fraud or forgery is not, it is not necessary to give the person affected an opportunity to be heard in relation to each circumstance relevant to the evaluation of the issue of claims…

62    Whilst it is tempting to fasten on the summary explanations used in some cases, such as that an issue is new rather than extant, or that an issue is obviously open on the materials, to characterise the circumstances in which natural justice has been accorded or not, those expressions followed and sought to describe the result of an assessment of all of the circumstances of the case. In each case the Court undertook an examination of all the circumstances to ascertain whether there had been either compliance with the requirements of s 425(1), or, where applicable, the common law. Thus, in WACO, the Full Court regarded it as relevant, in favour of the appellant, that the documents, if accepted, would corroborate a critical issue in the appellant’s claim. In SZMOK the Full Court regarded it as relevant, against the appellant, that on the evidence already given the Tribunal had formed a strongly adverse view of the his claim, that the claim said to be supported by the documents was raised at a very late stage, and that the documents did not provide clear support for the appellant’s case.

63    That said, there is force in the observation made by Robertson J in SZRAE at [36]:

[W]here the claimant, or the claimant through his or her adviser, submits material to the decision-maker after a hearing or interview it will be unlikely that that material gives rise to a critical issue not apparent from the nature of the decision. This is because, in most cases, that material will be directed to one or more such issues apparent from the conduct of the decision-making thus far.

64    The relevant particular circumstances of the present appeal can now be examined against the approach outlined.

65    The main issue arising on the appellant’s claim was whether he had been charged with the three alcohol-related offences. He said that he left Iran before the hearing of the third charge. A central element in his claim to fear return to Iran was his exposure to the death penalty for the third offence. The delegate, whilst accepting the evidence about the first two offences, did not accept that the third and critical offence had occurred. Thus, when the hearing was conducted before the Tribunal, the occurrence of the third offence was or ought to have been known by the appellant to be in issue.

66    Unlike in WACO, the documents produced did not corroborate the case advanced by the appellant. There was evidence on their face that they may not be genuine. As the Tribunal explained, the judgment dated 19 May 2010 indicated that the trial occurred on 19 May 2010, and the notice requiring attendance for the sentence to be carried out was dated 3 October 2010. The appellant said at the Tribunal hearing that he did not find out about the court hearing in Iran because he left before he was notified of the date. Yet, he left Iran in December 2010. Then, the judgment stated that the appellant had no previous criminal record, whilst the appellant’s case was that he had two prior convictions. In relation to the title deeds, the Tribunal observed that there was no reference to the case for which the deeds were said to have been given for security, there was no reference to the release from security even though the alleged case was concluded several years before, and there was reference to the registration of the security for a divorce even though the appellant made no mention that his parents were divorced. Further, the Tribunal observed at [98], as set out at [5] of these reasons, that at the hearing the appellant said that he did not have documents relating to the court proceedings, but that he later produced what he claimed were court documents. The Tribunal considered this against country information indicating that it is possible to obtain forged court documents in Iran, and found the appellant’s change in position was a reason to lend little weight to the documents. In the course of the hearing, the circumstances of the alleged offences were thoroughly canvassed, first by open questions put by the Tribunal, then by a close testing of the evidence relating to each of the alleged offences. The appellant was accorded a full opportunity to give his account of the events constituting the offences. The Tribunal doubted the appellant’s credibility and advised him on a number of occasions during the hearing of the doubts about the appellant’s account. The appellant was on notice of the issues to which the documents were directed. There was no requirement for a further hearing

67    Finally, the Tribunal’s statement that it would accept further documents did not give rise to an expectation that a further hearing would be allowed or that the purposes of the review had not been completely fulfilled. When the appellant’s adviser asked whether the Tribunal had accepted as genuine photos provided by the appellant, the Tribunal member said that he would “take it back and weigh it up with everything else that we’ve gone through”, and asked for originals of the pictures. It was not alleged that these statements gave rise to the expectation that a further hearing would be allowed. Nor does the invitation to provide further documents relating to the court proceedings lead to such a conclusion. The documents went to the question of the three offences, which was an issue canvassed with the appellant throughout the hearing.

COMPLEMENTARY PROTECTION

68    The appellant claimed that the Tribunal failed to consider one aspect of his complementary protection claim. That claim was that he would suffer significant harm as a person with past convictions and hence known to the authorities. In his prehearing written submissions this claim was based on his alleged alcohol-related offences.

69    The Tribunal dealt with the claim based on past convictions at [111] of its decision, where it rejected the claim because it found that the events concerning the alcohol-related and other offences had not occurred.

70    The appellant’s argument, however, was based on the Tribunal’s finding that he had been lashed. It followed, so the appellant argued, that the appellant had committed an offence which drew him to the attention of the authorities.

71    The Tribunal dealt with this issue at [112]. It found that the lashing concluded the legal proceeding for which it was given, and that the appellant was not wanted by the authorities or subject to any outstanding legal action. As a result the Tribunal found that there were no substantial grounds for believing that he would suffer significant harm on the basis of these claims. Thus, the Tribunal did deal with the claim that the appellant might suffer significant harm as a person with past convictions and hence known to the authorities. This ground is not made out.

CONCLUSION

72    In relation to the arguments advanced on appeal, the Federal Circuit Court did not make the errors alleged. The appeal is dismissed with costs.

Associate:

Dated:    6 August 2014