Abbasi v Minister for Immigration & Multicultural Affairs - [2001] FCA 1274 - FCA 2001 case summary — Zoe

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Abbasi v Minister for Immigration & Multicultural Affairs

[2001] FCA 1274

Federal Court of Australia|2001-09-21|Before: Beaumont J

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Source facts

Court

Federal Court of Australia

Decision date

2001-09-21

Before

Beaumont J

Source

Original judgment source is linked above.

Judgment (55 paragraphs)

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BEAUMONT J: INDEX INTRODUCTION..................................................................................................................... 3 THE TRIBUNAL'S REASONS................................................................................................. 3 THE APPLICANT'S CLAIMS AND EVIDENCE.................................................................... 3 (a) The Tribunal's general description of the material before it............................................ 3 (b) Statement made by the applicant in interview on arrival................................................. 4 (c) Statement made by the applicant in the visa application................................................. 5 (d) Statement made by Mr Bahram Abbasi in his statutory declaration................................ 7 (e) Statements made by Mr Bahram Abbasi (aka Ebassi) in support of his visa application.. 9 (f) The decision of the Tribunal (differently constituted) on review of the refusal of a visa for Mr Bahram Abbasi................................................................................................................................... 9 (g) Material placed on Mr Bahram Abbasi's file after the Tribunal's decision...................... 9 (h) Information in Departmental and Tribunal files relating to other members of the Abbasi family11 (i) Information provided by the applicant on interview by the Minister's delegate............. 12 (j) Information provided by the applicant in his statutory declaration of 2 February 2001.. 13 (k) Information in Bahram's statutory declaration of 2 February 2001............................... 14 (l) Information in Moharam's statutory declaration of 2 February 2001............................ 14 (m) The applicant's advisor's written submissions............................................................. 15 (n) The applicant's oral evidence given at the Tribunal hearing on 14 February 2001......... 15 (o) Oral submissions by the applicant's advisor at the Tribunal hearing.............................. 21 (p) The information provided by the applicant to the Tribunal after the hearing in response to an invitation by the Tribunal under s 424A(1)(c)...................................................................................... 21 (q) Independent evidence................................................................................................ 23 A. Illegal departure and applying for asylum abroad..................................................... 23 B. Moral laws............................................................................................................ 24 C. Evasion of conscription.......................................................................................... 24 D. Student demonstrations in July 1997....................................................................... 24 The Tribunal's findings and reasons............................................................................................ 27 THE GROUNDS OF THE APPLICATION FOR JUDICIAL REVIEW.................................. 32 CONSIDERATION OF THE APPLICANT'S FIRST GROUND FOR THE GRANT OF JUDICIAL REVIEW................................................................................................................................................. 33 (a) The applicant's original argument (dated 31 May 2001).............................................. 34 (b) The chronology.......................................................................................................... 35 (c) The Minister's initial response to the applicant's argument (dated 4 June 2001)........... 35 (d) The applicant's supplementary submissions on confidentiality issues (dated 19 June 2001) 37 (e) The Minister's submissions in reply on confidentiality (dated 27 June 2001)................. 41 (f) The applicant's supplementary submissions on the first ground (dated 29 June 2001)... 42 (g) The Minister's supplementary submissions on the first ground (dated 20 June 2001).... 43 (h) Conclusions on the first ground................................................................................... 44 CONSIDERATION OF THE APPLICANT'S SECOND GROUND FOR THE GRANT OF JUDICIAL REVIEW................................................................................................................................................. 44 CONSIDERATION OF THE APPLICANT'S THIRD GROUND FOR THE GRANT OF JUDICIAL REVIEW................................................................................................................................................. 45 CONSIDERATION OF THE APPLICANT'S FOURTH GROUND FOR THE GRANT OF JUDICIAL REVIEW................................................................................................................................................. 45 ORDERS.................................................................................................................................. 47

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(b) Statement made by the applicant in interview on arrival 5 The Tribunal noted that the applicant had attempted to enter Australia from Seoul, Korea, by using a photo-substituted Israeli passport (later found to have been reported as lost or stolen) in the name of Ofer Meiseles. When questioned, the applicant initially insisted that he was Israeli and that the passport was his. When informed that he would be returned to Seoul, the applicant stated his real name and said that because he was a refugee from Iran, he could not return to Iran. 6 The Tribunal noted that the applicant then gave the following version of events: · The applicant's mother and brother were in Australia. He had left Iran one year previously on a false Iranian passport in the name of Ali Reza Asghari. His father had organised this passport for him. · He had left Iran because he had had political problems with the Iranian government. The problem had happened at Teheran University a year and a half previously. He was not a student at the university, but his brother Mehrdad was a student. He had attended a student protest in front of the university about obtaining freedom in Iran. When soldiers attacked the demonstration, he and his brother were able to escape as they were at the back of the crowd. Those at the front of the crowd were captured and taken away. A demonstrator who was arrested gave the Iranian officials the applicant's name. The next day, the authorities came to look for him and his brother but did not catch him, as he had run away from home. He stayed at a house in Teheran until his father arranged a false passport on which he left Iran. · He would be in danger if he returned to Iran and he would have to go into hiding. He had attended the demonstration because he did not like the Iranian government. He had previously been detained for a minor incident more than two years previously (because he went to a party and had a can of beer). He was detained for a month and a half, went to court and was sentenced to eighty lashes. Also, he had been detained numerous times for offences such as having a girl in his car, having long hair and having a cassette tape in the car. He was usually detained for four to five hours and had been "bashed up". · He had come to Australia because his brothers had previously come here. He had had to use a passport in a different name to leave Iran because of his involvement in the demonstration.

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(c) Statement made by the applicant in the visa application 7 The Tribunal noted that in his visa application the applicant stated that he was a twenty-one year old Iranian national, a student who had travelled to Australia via Malaysia, Thailand and Korea, having left Iran on 15 September 1999. He had lived at the same address in Iran from January 1990 until April 1999. He had attended school in Janat Adab, Teheran, had had twelve years of education and had finished school in June 1998. He had not done military service. 8 The Tribunal further noted that in his accompanying statutory declaration, the applicant gave this version of events: · His family started having problems with the authorities after his brother Bahram was arrested in about 1991. Bahram had escaped from Iran and went to Austria. The authorities had come to their house, looking for Bahram. In about 1992, the authorities came to their house and arrested Mehran. Mehran had bruises and scars on his face when he was released from detention. · In about 1993, his brothers Peyman and Behnam were not living at home, as they were in hiding from the authorities. The authorities came to the house, looking for them, and then arrested Peyman. · In about 1994, his brother Bahram came back to Iran with his wife. His parents told him that Bahram came back to Iran because Peyman would not be released until he came back. They went to the airport to get Bahram and his wife, but Bahram was detained at the airport. Peyman was then released, and his father paid money to get Bahram out of Iran and back to Austria. · Sometimes when he was walking with a girl, or if his hair was too long, he was taken to the police station and hit. The applicant states that, after he finished school, he was with some friends at a party. He drank some beer at the party. The local Hezbollah police raided the party and started to arrest everyone. The applicant was taken to the police station and was held there for three days. He claims that he was told to sign papers but was not told what he was signing. He was handcuffed and taken to court. At the court the papers the applicant signed were read by the Mullah in charge. The applicant tried to explain that he had been forced to sign the papers, but was told to shut up. He was then taken to gaol and was kept there for six weeks. He was mistreated during this period. A guard told him that he was treated worse than other people because his family had a record of being against the government. After six weeks, he was taken back to court. The judge said that he was to be given eighty lashes before he was released. The applicant suffered major injuries to his back from the beating and was bleeding. He was released about five hours later. · The applicant was involved in student demonstrations in mid-1999. He had heard that there was to be a demonstration at the university. He attended the demonstration with his brother Mehrdad (who was a university student) and with a friend of Mehrdad's. He chanted anti-government slogans. The demonstrators were supporting Khatami. The military attacked the students. Demonstrators were hit with batons and tear gas was used against them. He and his brother lost contact with their friend. The applicant and his brother hid in a small shop until it was safe to take a taxi home. The next day his friend's mother phoned him to ask about her son. He told her that he did not know, as they had lost him at the university. The applicant believed that his friend had been arrested and would give the applicant's and the applicant's brother's name to the security forces if he were questioned. The applicant and his brother went into hiding in a house in south Teheran. The house was rented in the name of his cousin. The applicant was in hiding for about three months before he left Iran. · The applicant's father wanted him to leave Iran because of the danger he was in. His father paid a person he knew to arrange for him to leave. A contact of his father gave the applicant his ticket and an Iranian passport in the name "Alireza Asghari". The passport contained the applicant's photograph but not his date of birth. He left Iran for Malaysia on 15 September 1999. · The applicant was given a two week visa when he arrived in Malaysia. He met a Pakistani man who had his visa extended. About three months after he arrived in Malaysia, the Pakistani man arranged a British passport for him at a cost of US$4,000. When he tried to use the passport to leave Malaysia, he was told that the passport was false. He was held in the airport. An officer said that he could pay him a bribe, or else he would be sent back to Iran. The applicant paid the officer US$500. He was taken out of the airport and told not to try it again. The applicant then spoke to the Pakistani man who wanted another US$4,000 for another passport and ticket. The applicant did not have the money, so he contacted his family for it. His cousin told him that his father had been arrested. (This was in December 1999.) The applicant then used the Iranian passport to go to Thailand. In Thailand he met another Pakistani, who sold him an Israeli passport (in the name of Meiseles Ofer) and a ticket for US$3,000. The applicant travelled to Australia using this passport. · The applicant was afraid to return to Iran because he feared that he would be persecuted by the authorities who have targeted his family because of his brother Bahram. The applicant also claimed that he will be persecuted because he was involved in protests against the government, left Iran illegally and used an Israeli passport to enter Australia. The applicant stated that if the Iranian authorities learned that he had used an Israeli passport, this would create further problems for him. The applicant stated that he has not done military service and will have a problem because of this.

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(d) Statement made by Mr Bahram Abbasi in his statutory declaration 9 Reference was made by the Tribunal to the following material in Bahram's (the applicant's brother) declaration, dated 19 October 2000, which was presumably in his departmental file: · He commenced military service in May 1989 and was attached to an intelligence unit which reported on criticisms of the regime. He had a range of duties which included being a driver for officers to reporting on anti-government statements made by people in the military. He often had to drive officers from their homes to military sites in Teheran and then home again at the end of the day. These officers were very senior and their home addresses were secret to prevent attacks on them by anti-government groups. During his time in the military, he learned about classified military secrets including sites for weapons storage. He also had access to military intelligence codes. His superiors wanted him to spy on soldiers and officers in the air force base in Mehrabad. He was sent to these places as a "normal" soldier, without indicating he was from the intelligence section. He had to report anything he heard that was critical of the regime or that linked people to opposition groups. · He did not want to do this kind of work because he learned what happened to people who were reported to the intelligence section - they were detained, tortured and sometimes summarily executed. He did not report anyone. He was compared with other soldiers, and the authorities accused him of not doing his duty as others doing similar tasks were reporting people, yet he had not reported anyone. This created the impression that he was opposed to the government, because he was not helping the government enough in his duties. He was told that he was supporting opposition groups. · He was arrested and detained in March and April 1991 and was questioned, assaulted and subjected to psychological torture. He was told his family was anti-government and that his father was not a good Muslim. As there was no evidence against him, he was returned to his duties at Karaj, an air force anti-aircraft site near Teheran. His period of service was extended for another year so that he could be observed. Friends from Mehrabad intelligence service warned him that, from papers they had seen, he was at risk of further arrest. He decided to run away from the military and from Iran. He left Iran illegally in November 1991 from Tabriz into Turkey and later to Austria. · In March 1994, he had to return to Iran to help his brother Peyman, who had been arrested because of him. He also wanted to see his mother, who was ill in hospital at the time. The Iranian Embassy in Vienna called him and told him that, if he wanted his brother released, he had to return to Iran. He returned to Iran in order to save his brother. His wife went back to Iran with him. On return to Iran, he was arrested at the airport and kept in a small cell at the airport for about four weeks. He was going to be reported to the intelligence services. However, his father had connections whom he bribed not to report him. Because of the bribe, he was released for twenty-four hours so that he could see his mother in hospital. On the following day, he used his father's connections to leave Iran for Austria. · The Iranian security forces have persecuted his family because they believe he is somehow involved with opponents of the regime and that information he learned in the intelligence section will be passed on to opposition groups. The persecution of his family is intended to force him back to Iran.

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(g) Material placed on Mr Bahram Abbasi's file after the Tribunal's decision 12 The present Tribunal said: "Subsequent to the Tribunal's decision in Mr Bahram Abbasi's case, information was provided to the Department which was relevant to the issue of his character. This information indicated that Mr Bahram Abbasi had been untruthful in relation to evidence he had given to the Department and the Tribunal. The information indicated, inter alia, that Mr Abbasi: · Had applied for refugee status in Austria. This had originally been refused but was then granted on appeal; · He had obtained an Iranian passport in 1993 which he used to return to Iran on more than one occasion; · He obtained a false Austrian visa which he had placed in his Iranian passport; · His refugee status was revoked following his return to Iran in 1994; · He married an Austrian national and he was granted residency in Austria on that basis; · He was convicted of people smuggling and drug smuggling in Austria; · As a result of the drug smuggling conviction, he was sentenced to two years imprisonment, but came to Australia before he could be taken into custody. In July 1999 the Department wrote to Mr Abbasi putting this information to him and telling him that the Minister might refuse to issue him a visa under section 501(1) of the Act. Mr Abbasi was given an opportunity to comment on this information. On 12 November 1999 Mr Ron Kessels, solicitor, provided written submissions in response to the Department's letter. In these submissions Mr Kessels submitted, inter alia, that: · Mr Abbasi admitted the matters put to him by the Department and accepted that he could not satisfy the Minister that he passes the character test as defined by section 501(6) of the Act; · The Minister should exercise his discretion not to refuse to grant him a visa as he is a refugee and at risk of persecution if he were returned to Iran; · On 12 August 1994 Mr Abbasi was interviewed by Austrian immigration authorities at which time he effectively renounced his refugee status by advising them that he no longer feared returning to Iran. This was a lie. Since returning from Iran Mr Abbasi had been threatened by the Iranian Embassy and so felt that it would be better to change his status in Iran from that of a refugee to that of the spouse of an Austrian national; · Mr Abbasi realised that his lies to the Department and the Tribunal might amount to offences under the Migration Act 1958. However, his behaviour should be seen in the light of his personal circumstances at the time. He considered these actions were necessary to avoid what he perceived to be the real likelihood that the Austrian government would return him to Iran. At the time of writing this decision, the Department of Immigration had taken no further action in relation to Mr Bahram Abbasi's case, either to issue a protection visa, to refuse to do so, or to prosecute Mr Abbasi in relation to possible breaches of the Migration Act 1958."

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(h) Information in Departmental and Tribunal files relating to other members of the Abbasi family 13 Of this material, the Tribunal said: "All of the applicant's family members make claims that allege persecution of family members because of the Iranian authorities' alleged interest in Bahram Abbasi. There are allegations that the applicant's brothers Mehran and Peyman were arrested on various occasions because the authorities wanted information concerning Bahram. In addition, the applicant's father claims that he paid significant amounts of money to contacts to enable his sons to leave Iran. For example, he claims that he paid US$3000 on two different occasions for Peyman to leave Iran and US$3000 each for Mehran and the applicant to leave. As noted above, the applicant also claims that his father paid in the region of US$7000 for passports in Malaysia and Thailand. In a statutory declaration accompanying his application for a protection visa the applicant's brother Mohammad claims that he paid US$10000 for a photo-substituted British passport on which he entered Australia. The applicant's father also claims that he paid US$24000 to a contact so that he and the applicant's mother and brother Mohammad could get visitor visas to come to Australia. The applicant's parents entered Australia using these visas and passports in their own name. Information from the Australian Embassy in Teheran indicates that a senior Iranian bureaucrat approached the Embassy and asked that visas be issued to the applicant's parents, stating that the applicant's parents were related to an even more senior bureaucrat. Visitor visas for the applicant's parents were issued on an assurance given by the more senior bureaucrat that the applicant's parents were bona fide tourists. The applicant's brother Mohammad's visitor visa application was refused. The applicant's father's application for a protection visa indicates that he travelled to Turkey for tourism purposes for one day in 1997. However, in his application for a visitor's visa the applicant's father indicated that he travelled to Saudi Arabia on hajj for twenty four days in 1993, to Turkey for twenty days in 1994 and to Germany for twenty days in 1995. As noted above, the Department issued a protection visa to Mehran Abbasi in March 1997. Mehran Abbasi's only claim was that he feared persecution because of the official interest in his brother Bahram. There is information before me indicating that Mehran Abbasi left Australia within weeks of being issued a protection visa in May 1997. He remained outside of Australia until January 2000. Mehran Abbasi then travelled out of Australia on several occasions between January and May 2000. In May 2000 Mehran changed his name by deed poll to Kelvin Richmond. Kelvin Richmond left Australia in June 2000, apparently using a Convention travel document. He has not yet returned to Australia."

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(n) The applicant's oral evidence given at the Tribunal hearing on 14 February 2001 20 The Tribunal summarised the evidence given by the applicant at this hearing as follows: · Prior to leaving Iran, the applicant was living in Teheran in hiding. His cousin rented the house in which he was living before he came to Australia. He lived there for three months before he left Iran. Prior to that, he lived in his father's house in the Teheran suburb of Janat Abad. The family had lived there for the previous ten years. Before this, they lived in Vanak Square. Before he left Iran, he was in hiding with his brother Mehrdad. Before that he lived with his parents and his brothers Mohammad and Mehrdad. · For ten or eleven years his father had a building business. For five years, he also had a mechanic's business. At the time he left Iran, his father was still involved in the building business. His father sold the mechanic's business in 1995. · All of his brothers helped in their father's business. They did not have any other employment. In Australia, Bahram and Mehran worked as builders and painters. When asked if either of his brothers had left Australia since arriving here, the applicant responded that Mehran went to Japan for "leisure" and that he was there then. Mehran had been in Japan for two and a half months. The Tribunal put to the applicant that, according to Departmental records, Mehran had left Australia for two and a half years shortly after he obtained a protection visa. The Tribunal noted that the Department's database of movement records indicated that Mehran had left Australia in May 1997, that he did not return to Australia until January 2000, that he had left Australia on several occasions since then and that he was then in Australia. The applicant responded that Mehran went to Thailand for two and a half years. He did not say this earlier because he had forgotten. The applicant stated that he did not know why Mehran went to Thailand. He could not explain how his brother could be in Japan when the Department's database showed that he was currently in Australia. · The applicant stated that Behnam was in Japan. He had been working there for about two months. The applicant did not know if Behnam was in Japan legally or not. Both of these brothers feared persecution in Iran because of Bahram. The Tribunal asked the applicant if his brothers had applied for refugee status in Japan. He responded that they had not done so. The applicant stated that their parents wanted them to apply for refugee status in Australia. · Mehrdad was studying electronics at Teheran University. He started about three or four years ago, at the age of twenty-one or twenty-two. The Tribunal asked the applicant whether Mehrdad did military service before studying. He responded that Mehrdad had not done so, as he could get an exemption. Mehrdad had gone to university straight from school. The Tribunal put to the applicant that this was hardly possible if his brother only started university at twenty-one or twenty-two. The applicant then stated that he thought Mehrdad started university about six years ago. · The applicant had completed secondary school in June 1998. He was unemployed after he finished school, and he did not need to work as his father supported him. He did not register for military service when he turned eighteen because he wanted to leave Iran. · The applicant was claiming to be a refugee because his family had been targeted because of his brother Bahram, because he attended the student protests in 1999 and because he used an Israeli passport to enter Australia. All of his family in Iran had been persecuted because the authorities were interested in Bahram. His family did not have any political problems other than those arising out of the Iranian authorities' interest in Bahram. · The Tribunal asked the applicant what he knew about Bahram's case. He stated that the only thing Bahram had told him was that although the Tribunal had found him to be a refugee, he was still waiting for his visa. Bahram had not told him why the visa had not yet been issued. The Tribunal asked the applicant if he was aware that this brother had admitted lying to the Department and the Tribunal about a number of matters relevant to his claims. He responded that he did not know about this. The Tribunal went through the matters raised by the material that came before the Department after the Tribunal made a decision on Bahram's case, which was put to Bahram in 1999. The Tribunal noted that Bahram had admitted having lied to the Department and the Tribunal and had provided some reasons why he had done so. · The Tribunal also put to the applicant that the (differently constituted) Tribunal which dealt with Bahram's case did not believe that his brother had a well-founded fear of persecution for a Convention reason in relation to what happened to him in Iran. The Tribunal indicated to the applicant that, having read Bahram's statement and having considered the evidence before the (other) Tribunal in Bahram's case, this Tribunal had similar problems with his brother's claims. This Tribunal noted that the Tribunal member who had decided Bahram's case had only done so on the basis that he accepted that Bahram and Mehran had left Iran illegally and because the Department had accepted Mehran's account. However, this Tribunal noted that there was no independent evidence to suggest that Bahram would have a well-founded fear of persecution for these reasons. · The Tribunal put to the applicant that his brother's admitted dishonestly, together with the Tribunal's views concerning Bahram's claims in relation to what happened to him in Iran made it very difficult to accept that Bahram had ever been targeted for his alleged political activities or political opinion. It followed that it was difficult to accept that the applicant had ever been targeted because of his brother Bahram. The applicant responded that he was very young when Bahram left. He maintained that his family had been persecuted because of whatever Bahram had done. The applicant added that he also feared persecution because he had attended the student demonstration in 1999. · These demonstrations had started on 8 July 1999 in the main grounds of Teheran University because of the closure of Salaam newspaper. He attended on the first day (8 July 1999) but did not attend on any other day. There were only university students there when he arrived. During the day the crowd grew to around one hundred thousand people. The applicant had shouted slogans, but did not do anything else. He was there for about five or six hours. He believed that he would be arrested because of his participation. People convicted because of their involvement were sentenced to ten years' gaol and execution. · The Tribunal put to the applicant that the independent evidence indicated that although a number of people who participated in the demonstrations had been arrested, most of those arrested were released; that those who were of ongoing interest to the authorities were leaders of the student movement; that the evidence suggested that a low level participant who had done nothing other than shout slogans would not have been of any interest to the authorities; and that there was no evidence suggesting that people were arrested on the first day of the protest, when it had been peaceful. The applicant responded that the demonstration leader had spoken on loudspeaker and his speech was against Islam and about seeking freedom. He stated that the demonstration speaker was arrested. · The applicant stated that he had been detained in November 1998, and had also been detained for several hours on many other occasions. This has happened since he had been able to drive. He could not say how many times he had been detained, but thought it would be more than one hundred times. He had been detained for having long hair, for having music cassettes in his car and for having a girl in his car. He would be detained for a few hours, hit, and then released. However, this would happen to anyone who broke the law. It particularly affected young people. There is animosity between Iranian youth and the government because young people are made to observe Islamic rules. The applicant does not claim that he left Iran because of this. · The applicant had been in gaol for a month and a half in November 1998 because he had attended a party and consumed alcohol. The Hezbollah raided the party and arrested everyone. The party was being held at his friend's house. The applicant was sentenced to six weeks in gaol and given eighty lashes. When asked how the punishment related to the Convention, the applicant responded that this incident was not the reason he was seeking asylum. His major problems were his family's problems and his attendance at the student protest. · Noting the applicant's claim that he could be harmed if he returned to Iran because he had travelled to Australia using a photo-substituted Israeli passport, the Tribunal asked the applicant how he thought the Iranian authorities would find out that he had used such a passport. He responded that at the detention centre, all the Iranians told each other about their problems. After he had been there a week or ten days, one of the other Iranian detainees was deported to Iran. All the detainees were sure that the person who was deported would be detained (by the authorities in Iran) as he had been in Australia for two years. The person deported was supposed to contact the Iranians in the detention centre after he arrived in Iran. However, it had been two months since he left and he had not called. The applicant stated that the person deported would have been arrested and tortured to reveal all the details about those who are in detention (in Australia) and who have applied for refugee status here. · The Tribunal put to the applicant that there was no evidence that the Iranian authorities persecuted people merely because they had applied for refugee status (elsewhere). The applicant claimed that the Iranian authorities would think that he was an Israeli spy because he used an Israeli passport. The Tribunal put to the applicant that, even if the Iranian authorities found out about his use of an Israeli passport in the manner he suggested, it was difficult to accept that the authorities would assume that he was an Israeli spy, given that he had no involvement in political matters, had not been to Israel, was not Jewish and had bought a photo-substituted passport from a smuggler in Bangkok. But the applicant insisted that he would be persecuted for this reason. · The Tribunal put to the applicant that, according to his and his brothers' and parents' files, his father had paid out somewhere in the region of $US100,000 to obtain documents and to pay bribes and that this indicated that his father was very wealthy. The applicant agreed. His father had purchased a house in Australia that cost $AUD700,000 and had paid cash for this. When asked how his father brought so much cash into Australia, the applicant stated that, actually his father had paid $500,000 cash for the house, but it was now worth $700,000. There are companies in Iran that receive money and deliver it in Australia, having taken a commission. The Tribunal asked the applicant how his family could be that well off, if they had been persecuted over a number of years because of their imputed political views. The applicant responded that his father had to keep the business going. His father had sold the business before he left Iran. The Tribunal asked why his father had bought a house in Australia before he knew the outcome of his protection visa application. The applicant responded that his family had not anticipated that they might not be able to stay in Australia. · The Tribunal put to the applicant that information before it indicated that his father and mother had obtained visas through an Iranian Bureaucrat. The applicant stated that his father told him that he obtained a visa through a Mr Kazar and that he paid about $AU50,000. His brother Mehrdad had told him that Mr Kazar's job was to look for people who wanted to obtain an Australian visa. He would take their passports to the Embassy. The Tribunal asked why his parents paid so much money to get visas to come to Australia, when for apparently much less money, they could have purchased photo-substituted passports in Bangkok. The applicant stated that his father had paid that amount of money so that he could come to Australia more easily.

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(p) The information provided by the applicant to the Tribunal after the hearing in response to an invitation by the Tribunal under s 424A(1)(c) 22 At the conclusion of its hearing, the Tribunal invited the applicant to comment on certain information pursuant to s 424A(1)(c). (By s 424A(1) it is relevantly provided that the Tribunal must give the applicant particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision under review, and invite the applicant to comment on it.) 23 The information put to the applicant was that: · His brother Bahram had admitted lying to the Department and the Tribunal in relation to a number of issues; · Bahram's Iranian passport indicated that he travelled to Iran on more than one occasion after his original departure from Iran; · When the (differently constituted) Tribunal made a decision in relation to Bahram's case, it did not accept that Bahram was of any interest to the Iranian authorities during his period of military service by reason of his actual or imputed political opinion or his political activities; · Information provided to the Tribunal by the Australian Embassy in Teheran indicated that a high ranking Iranian bureaucrat requested that a visa be granted to the applicant's parents and his brother Mohammad. It was indicated that the applicant's father was a relative of this bureaucrat. The applicant's father's visitor's visa application indicated that his father had previously travelled to Germany, Turkey and Saudi Arabia; · Evidence provided to the Department by the applicant, his father and various of his brothers indicated that the applicant's father paid very large sums of money at various times for bribes and to obtain documents. This evidence suggested that his father was quite wealthy, and appeared inconsistent with his claim that his family was particularly targeted because of his brother's political profile. 24 The applicant was told that the above information was relevant because the lies his brother Bahram had admitted having told the Department and the Tribunal cast doubt on Bahram's overall credibility. It was further put to the applicant that the problems with his brother's credibility were compounded when it was considered that the (other) Tribunal did not accept his brother's evidence that the Iranian authorities had any interest in him for reasons of his actual or imputed political opinion. It was also put to the applicant that the information tended to suggest that his father was very wealthy and had good connections with officials in the Iranian bureaucracy. It was put to the applicant that overall, the information adversely affected the credibility of his claim that the Iranian authorities had an adverse interest in him because of his brother's alleged political profile. 25 The applicant's advisor responded by letter dated 19 February 2001 as follows: · Bahram had an ongoing case with the Department and had been advised not to discuss his case without prior consultation with his solicitor; · The applicant's family had been harassed since Bahram's departure from Iran in the early 1990s. As far as the applicant knew, this was because of Bahram's adverse political profile in Iran; · The applicant's father had only been outside Iran on one occasion, when he went to Turkey in 1997. His father had told the truth about what he did to obtain a visitor's visa to come to Australia; · The applicant's father's employment was in the private sector, not in the government section, and was not at any stage in jeopardy because of his sons' anti-government activities; · The applicant should not be presumed to have misled the Department just because his brother, in the worst case scenario, is found to have done so; · The applicant had claimed that he participated in the bloody student demonstrations of July 1999 and had subsequently come to the adverse attention of the authorities; · Mehran had changed his name to Kelvin Richmond on 23 May 2000. The applicant's advisor also provided a statutory declaration from Mohammad (apparently written in response to correspondence from the Department) stating that his parents did not fill in or sign forms in relation to their visitor visa applications; that as far as he knew, his family did not have relatives in high places who could get visas for them by making a telephone call to the Australian Embassy; and that his family had had a lot of problems with the security forces in Iran because of Bahram.

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D. Student demonstrations in July 1997 32 The Tribunal cited at length from Human Rights Watch's 2000 Annual Report as follows: "In June Salam, one of the most popular pro-reform newspapers, published an internal memorandum said to have been written by Saeid Emami, a detained ministry of intelligence official. In the memo, Emami sets out a policy to harass and stifle the independent press through a variety of legal and extralegal measures, remarkably similar to the actual experiences of the journalists and the press throughout the year. In July, Salam was closed down and charges of spreading false information brought against its publisher, Mohammad Mousavi Khoeniha, in a Special Court for the Clergy. The closure triggered a peaceful protest by students at Teheran University on July 8. During the early hours of July 9, members of an unidentified uniformed militia force entered the university dormitories while the students slept and attacked them, throwing some out of windows an taking some away. The dormitory rooms were ransacked and furniture and equipment smashed. According to the witnesses at least four students were killed in the assault on the dormitory, three hundred wounded, and four hundred taken into detention. The next day, students took to the streets to protest the assault on the dormitories, to demand an inquiry, and to call for the release of their colleagues from detention. The demonstration was broken up by hard-line enforcers associated with conservative leaders within the government, the Ansar-e Hezbollahi (Partisans of the Party of God), wielding clubs and chains while members of the security forces stood by or joined in the assault on the demonstrators. However, student protests continued in Teheran on July 10 and spread to other cities with calls for the dismissal of Teheran police chief, hedayat Lotfian and for the prosecution of those responsible for the raid. Outrage about the brutality of the initial night-time assault on the dormitories spread throughout Iranian society. Both President Khatami and Supreme Leader Ayatollah Ali Khamene'i condemned the raid and the minister of the interior, Abdullah Mousavi-Lari declared that it had taken place without any authorization from the ministry. The student protests, also an outlet for popular expression of dissatisfaction with government policies in a wide range of areas, including the dire economic situation, the lack of opportunities for university graduates, restrictions on basic freedoms, and the slow pace of reform were likened by commentators to the mass demonstrations in 1978 and 1979 which preceded the overthrow of the Shah. The popular mood changed abruptly when the demonstrations deteriorated into looting and vandalism on July 12 and July 13. The leadership, with President Khatami and Ayatollah Khamene'i acting in concert, moved swiftly to ban further protests and to arrest hundreds of purported ringleaders. The student movement distanced itself from the activities of looters and lawbreakers, making a distinction between the peaceful protests of July 9-11 and the riotous behaviour of the following two days. Blame for the unrest was pinned on hostile, foreign-backed forces and several conservative leaders suggested that public support for a reform agenda was sowing confusion and leaving the nation vulnerable to attack by its enemies. In the following weeks the conservative press carried statements by Revolutionary Guard leaders calling for an end to President Khatami's "dangerous experiments with democracy." President Khatami weathered this most serious challenge to his leadership to date, emphasizing a commitment to the rule of law. Senior Teheran police chiefs were charged with responsibility for allowing the raid on the dormitories, though the head of Teheran police, Hedayat Lotfian was exonerated of any responsibility, and a hard-hitting report that criticized the police and conservative militia groups was issued by the NSC in mid-August. President Khatami stated on August 12 that "police officers acting outside their authority and non-military personnel" were responsible for the dormitories raid, but no public criminal proceedings ensued, leaving the full story of who ordered the raid and which forces carried it out still shrouded in mystery. Eyewitnesses confirmed that the main force involved in the violent assault was not the Ansar-e Hezbollahi but a much more disciplined, better equipped, uniformed force which arrived at the scene in its own vehicles, entered the campus with cooperation from police officers, and vanished into the dawn a few hours later. Mystery also surrounded responsibility for the incidents of looting and property damage on July 12 and 13 with speculation that the street violence was initiated by state-backed agent-provocateurs in order to discredit and undermine the protest movement. Following the unrest, hundreds of students remained in detention or were unaccounted for. The head of Tehran's Revolutionary Court stated on September 11 that four unnamed individuals had been sentenced to death in connection with the pro-democracy protests. The sentences were handed down in secret Revolutionary Court trials in which procedures fall far short of international fair trial standards. In an interview with the conservative daily newspaper Jomhouri-Eslami, Hojatoleslam Gholamhossein Rahbarpour said two of the sentences had been confirmed by the Supreme Court and held out the possibility of further death sentences among the "thousand arrested" during the protests. (Human Rights Watch Annual Report 2000 'Iran')." 33 The Tribunal then referred to DFAT advice in September 1999 that: "[O]ut of 1,500 individuals arrested during the unrest, 500 had been released immediately after questioning and 800 were later released on bail, while further investigations were being conducted against the 200 individuals who remained in detention. Although there appears to be a continuing interest in the leaders/organisers of the unrest, this seems to be less so in the case of other, more minor participants. Nonetheless, we would consider that the possibility of new arrests in connection with the unrest continues to exist, although this would likely depend on the alleged level of involvement… It would appear plausible that pressure could be exerted against the family of someone who had played an active role in the riots or who had otherwise attracted the attention of the authorities during the unrest, although less so in the case of minor participants." 34 The Tribunal went on to note the following observations by DFAT in April 2000: "We understand that demonstration participants who did not resort to violence were all finally released or given gaol sentences of 12 months or less, including for those who carried banners in demonstrations or who tore pictures of the Supreme Leader. Individuals convicted of more serious offences, such as involvement in proscribed political groupings, major violence or setting fire to buildings (including government property) received heavier sentences, in some case gaol terms of 10 years or longer."

[38]

The Tribunal's findings and reasons 35 The Tribunal, having said that the applicant's credibility was "central" to its decision, observed that his evidence was "problematic" in a number of ways, such that the Tribunal was unable to be satisfied that he had a well-founded fear of persecution for a Convention reason, because it could not be satisfied that Bahram was, in fact, of adverse interest to the Iranian authorities - " [i]n view of the previous Tribunal's rejection of Bahram('s) … claim to have been targeted for political reasons in Iran …" 36 The Tribunal said, in addition, that the material that had come to light since the other Tribunal's decision had a significant effect on the credibility of Bahram's evidence generally. Bahram had admitted to misleading the Department and the Tribunal in relation to when he left Iran, where he was living prior to coming to Australia, his status in Austria, his return to Iran following his initial departure, his marital status and his criminal convictions. Bahram's advisor had provided submissions to the Department advancing explanations for these lies in response to the Department's advice that consideration was being given to refusing to grant Bahram Abbasi and protection visa on character grounds. But, regardless of the reasons advanced for lying to the Department and the Tribunal, the nature and extent of these lies cast doubt on his credibility as a whole, particularly when considered in conjunction with the fact that the Tribunal did not accept Bahram's own evidence that he was targeted for political reasons in Iran. Although the Tribunal had found Bahram to be refugee, it did so not on the basis of Bahram's or Mehram's evidence concerning what allegedly happened to Bahram in Iran, but on the basis that Bahram and Mehram had left Iran illegally, and Mehram had been granted a protection visa by the Department. It was not clear on what basis the previous Tribunal was of the view that this would lead to Bahram having a well-founded fear of persecution. The Tribunal did not cite any independent evidence in support of this. Indeed, the independent evidence before the present Tribunal suggested that neither illegal departure from Iran, nor applying for asylum abroad would give rise to a well-founded far of persecution in Iran. There was no independent evidence to support a conclusion that a person would have a well-founded fear of persecution in Iran because the person's brother had been granted refugee status in another country. 37 Furthermore, the Tribunal observed, Bahram's most recent statement indicated that he returned to Iran in 1994, that he was detained when he did so, and was able to leave through his father's connections. However, entry and exit stamps in Bahram's passport clearly indicated that he was in Iran not only in 1994, but again in 1995. In the absence of any other credible explanation for the presence of the stamps in the passport, the Tribunal concluded that Bahram was in fact in Iran in early 1995. The fact that Bahram used an Iranian passport in his own name to enter and exit Iran in 1994 and again in 1995 strongly suggested that he did not fear persecution in Iran. It also strongly suggested that the Iranian authorities did not have any adverse interest in him, either because of his political opinion, because he left Iran illegally in 1991, or for any other reason. If Bahram had been detained when he returned to Iran in 1994 (as he had claimed) he would not have again returned to Iran in 1995. 38 The Tribunal was not satisfied that Bahram was of any adverse interest to the Iranian authorities at the time of his departure from Iran in 1991, nor satisfied that Bahram was detained on his return to Iran in 1994, or that he was of any adverse interest to the Iranian authorities at that time, or at any time after his departure from Iran in 1991. 39 The Tribunal expressed other reasons for concluding that the applicant was of no interest to the authorities in Iran because of the alleged interest in Bahram: the only incidents of detention referred to by the applicant occurred when he breached Iran's laws relating to moral standards. He had only claimed to have been detained on occasions when he had music cassettes in the car, when he was in the car with a girl, when his hair was too long and when he went to a party and consumed alcohol. If the Iranian authorities had imputed the applicant with an adverse political opinion because of Bahram, they would have demonstrated that interest in some way, and would not have waited until the applicant broke laws relating to morality, grooming or consumption of alcohol before detaining him. (The Tribunal later dealt with the applicant's claims in relation to these incidents of detention.) In his application for a protection visa, the applicant claimed that his sentence of six weeks in gaol and eighty lashes was motivated by the authorities' perception of his family. However, at the hearing he did not press this claim, and instead stated that the only reason he received this sentence was because he had consumed alcohol at a party. 40 The Tribunal said that it was unable to be satisfied that the applicant was targeted in Iran because the Iranian authorities have an adverse interest in Bahram. The Tribunal expressed the view that the applicant has "fabricated" this claim in an attempt to bring himself within the definition of a refugee. 41 The applicant claimed that he attended student demonstrations in Iran on 8 July 1999 and was of interest to the Iranian authorities for this reason. The Tribunal accepted that he attended the demonstration, however, it was not satisfied that he was of any interest to the Iranian authorities for this reason. According to independent evidence, on this day the student demonstration was a peaceful protest against the closure of Salaam. The student protests took a different turn when students were attacked in their dormitories in the night of 8 July. The independent evidence did not suggest that the Iranian authorities attacked student demonstrators on 8 July or that those only involved in the peaceful protest on that day were arrested. 42 The independent evidence also indicated that, as at September 1999, the Iranian authorities had a continuing interest in arresting leaders and organisers of the unrest. However, DFAT's advice suggested that this interest did not extend to more minor participants. Information provided by DFAT in April 2000 indicated that all of those arrested as a result of the demonstrations (some 1500 people) had been dealt with, and either released or sentenced. DFAT's advice did not suggest that the Iranian authorities have any interest in arresting people who merely participated in the demonstrations. The sum total of the applicant's involvement in the student demonstrations consisted of attending a peaceful demonstration on 8 July 1999 and shouting slogans. He did not claim to be a leader or an organiser of the protest. Nor did he claim to have been involved in any of the violence that occurred from 9 July onwards. The Tribunal was not satisfied that he would be of any interest to the Iranian authorities because he attended the first day of the student demonstrations in July 1999, nor that he went into hiding following the demonstrations, or that the Iranian authorities came looking for Mr Abbasi for this reason. 43 The Tribunal did not accept the applicant's claim that he was at risk of persecution in Iran because he had tried to enter Australia using a photo-substituted Israeli passport, that this information had been passed back to the Iranian authorities and that they will think that he is an Israeli spy. His evidence was that an Iranian deportee who he had asked to phone him after he went back to Iran had not done so, but the Tribunal was unable to conclude that, just because the deportee had not phoned, that he had been arrested, tortured, questioned about detainees in Australia and that he had disclosed that the applicant tried to enter Australia using an Israeli passport. The applicant's evidence in relation to this issue was "highly speculative". The chance that Iranian authorities would become aware that the applicant had tried to enter Australia using an Israeli passport was remote. Even if the Iranian authorities did somehow become aware that the applicant had tried to enter Australia using an Israeli passport, the Tribunal did not accept that they would consider that he was an Israeli spy. The applicant had never been to Israel. He was of no interest to the authorities for political reasons before he left Iran. He was not Jewish. He had not claimed (and the evidence did not suggest) that he was involved with any Jewish people or Jewish organisations in Iran. There was no suggestion that the applicant had access to any information that would be considered confidential by the Iranian government, or of any interest to the Israeli government. All the applicant had done had been to purchase a photo-substituted Israeli passport from a smuggler in Bangkok. The Tribunal was unable to be satisfied that this would lead the Iranian government to imputing Mr Abbasi with an adverse political opinion. 44 The applicant had claimed that he had been detained on a number of occasions because his hair was too long, because he had a girl in his car and because he had music cassettes in his car, and that he had been detained for a month and a half and given eighty lashes in November 1998 after he went to a party and consumed alcohol. He had claimed that the latter penalty was particularly harsh because of his family's political profile. But he did not pursue this claim at the hearing. His evidence then was that punishments for breaching Iranian laws in relation to grooming, relationships with the opposite sex, consumption of alcohol and so forth, were imposed on anyone in Iran who breached these laws, but he was not now claiming to have a well-founded fear of persecution on this basis. 45 Yet, the Tribunal nevertheless considered whether these matters gave rise to a well-founded fear of persecution for a Convention reason. The Tribunal accepted that consuming alcohol was against the law in Iran, that having music cassettes in the car or being in a car with an unrelated female, can attract a penalty, and that the applicant has on occasions been detained for a few hours for such offences. However, the Tribunal did not accept that the applicant had been detained for six weeks and given eighty lashes because he had attended a party and consumed alcohol. He did not claim that he had been detained on any previous occasion because he had consumed alcohol. The independent evidence indicated that a first offence would normally only attract a fine and a warning. The applicant's evidence in relation to the penalty imposed on him was inconsistent with this independent evidence. In any event, even if the applicant received penalties as claimed, persecution involves an element of motivation for the infliction of harm. The phrase "for reasons of" serves to identify that the motivation for the infliction of the persecution must be found in the singling out of one or more of the five Convention reasons. But if the appellant were punished, it was because he had breached Iranian laws. The laws in relation to alcohol consumption, grooming, possession of music and relationships with the opposite sex were laws of general application in Iran, notwithstanding that they arise out of Islamic religious values. Whilst the punishment which is imposed for breach of these laws may amount to a breach of human rights, the issue for the Tribunal was whether such treatment amounts to persecution for a Convention reason. The Tribunal did not accept that the applicant was of any interest to the Iranian authorities for political reasons prior to his departure from Iran. There was no evidence to suggest that there was any other Convention reason for the Iranian authorities to impose a more serious punishment on him than that usually imposed on those who break laws of general application. The Tribunal was not satisfied that any punishment that had been imposed amounted to persecution for a Convention reason. Moreover, the Tribunal could not be satisfied (a) that there was a real chance that the applicant then had a well-founded fear of persecution for a Convention reason arising out of these matters; or (b) that restrictions on behaviour imposed by Iranian morals laws amounted to persecution for a Convention reason. 46 The Tribunal noted the applicant's claim that he had not completed military service and had left Iran illegally using a photo-substituted passport. Given that Mr Abbasi turned eighteen in March 1998, the Tribunal considered it quite possible that in fact he had completed military service prior to leaving Iran, and that he left Iran in 2000, not in 1999, as he had claimed. If he had completed his military service, he would have had no particular difficulty obtaining a passport and leaving Iran legally using a passport in his own name. In any event, even if he had not completed military service and did leave Iran illegally, the independent evidence did not suggest that this would give rise to a well-founded fear of persecution for a Convention reason. The independent evidence indicated that he might face prosecution for leaving Iran illegally and that the most likely penalty would be a fine. The independent evidence also suggested that the applicant would not face any penalty for leaving Iran without doing his military service, although he would be obliged to do military service on his return. He had not claimed, and the evidence did not suggest, that the obligation to undertake compulsory military service in Iran amounted to persecution for a Convention reason.

[39]

THE GROUNDS OF THE APPLICATION FOR JUDICIAL REVIEW 47 Four grounds are relied upon. 48 The first ground is that procedures that were required by the Act to be observed in connection with the making of the decision were not observed (see s 476(1)(a)). The particulars given of this ground are: "Particulars The Tribunal sought information held by the Department of Immigration in relation to protection visa applicants other than the applicant, namely; Bahram Abbasi (Ebassi), Moharram Abbasi, Shafigeh Masoum Alizadeh, Mohammed Abbasi, Mehran Abbasi and Peynam Abbasi. That information fell within the provisions of s438(1)(b) of the Act because it was information given by those people to the Minister in confidence. As such, the Secretary of the Department (the Secretary) was required to notify the Tribunal in writing that s438 applied to the material and the Secretary should have considered whether to advise the Tribunal of anything relevant about the material (s438(2)). These requirements were not complied with. Had s438 been complied with, the Tribunal would have been required to consider whether, in the light of any advice given by the Secretary, it would use the material and, if so, whether it would disclose it to the applicant and , if so, what order under s440 it would make (s438(3) and (4)). These requirements were not complied with." 49 The second ground is based upon the provisions of s 476(1)(b), (c) and (e). It said that, for the reasons stated in the particulars given in respect of the first ground, the Tribunal did not have jurisdiction (s 476(1)(b)), that the Tribunal's decision was not authorised by the Act (s 476(1)(c)) or involved an error of law (s 476(1)(e)). The particulars are those given for the first ground. 50 The third ground is also based upon s 476(1)(b), (c) and (e). Particulars are as follows: "Particulars The material and information provided to the Department of Immigration by the protection visa applicants, Bahram Abbasi (Ebassi), Moharram Abbasi, Shafigeh Masoum Alizadeh, Mohammed Abbasi, Mehran Abbasi and Peynam Abbasi, was subject to the Privacy Act 1988 (s6). Disclosure of this information to the Tribunal was in breach of Part III Principle 11 of that Act. The Tribunal could not lawfully use material obtained in this manner. To the extent that the material could have been lawfully provided to the Tribunal under s424 of the Migration Act 1958, the disclosure was not so authorised because of the Department's non-compliance with s438."

[42]

(a) The applicant's original argument (dated 31 May 2001) 54 In his initial submission (dated 31 May 2001) the applicant advanced the following argument: · The Tribunal obtained Departmental files relating to other members of his family, also applicants for protection visas. · The Tribunal put information from these files to the applicant during the hearing and relied upon it in its decision. · The files contained information provided to the Department in confidence. The Department's Secretary was obliged to notify the Tribunal in writing that s 438 applied to that information (see s 438(1)(b) and (2)(a)). (Section 438 deals with the Tribunal's discretion in relation to disclosure of certain information, etc. Section 438(1)(b) provides that s 438 applies to a document or information if the document, the matter contained in the document, or the information was given to the Minister, or to an officer of the Department, in confidence. Section 438(2)(a) provides that if, in compliance with a requirement of or under this Act, the Secretary gives the Tribunal a document or information to which s 438 applies, the Secretary must notify the Tribunal in writing that s 438 applies in relation to the document or information. Section 438(3) provides that if the Tribunal is given a document or information, and is notified that s 438 applies in relation to it, the Tribunal may (a) have regard to it and (b) may disclose any matter in the document or the information, to the applicant.) · On the material available to the applicant at the date of this submission pending the Minister's response to a notice by the applicant to produce documents (some material (Ex. "A") was later tendered by the applicant - see below) there was no evidence that the mandatory written notice was given by the Secretary to the Tribunal as required by s 438(2)(a). This constituted a failure to comply with a procedure within s 476(1)(a). Alternatively, if a notice was given under s 438(2)(a), there was no evidence that a direction under s 440 was given, as required by s 438(4). (Section 438(4) provides that if the Tribunal discloses any matter to the applicant under s 438(3), the Tribunal must give a direction under s 440 in relation to the information. Section 440 empowers the Tribunal to restrict publication or disclosure of certain matters.) · Unauthorised disclosure of confidential information had potentially serious consequences for a protection visa applicant, as recognised by the Department's references to the provisions of the Privacy Act 1988 (Cth) in its published Information Form 993i (I will return to this below). 55 (As mentioned, the applicant later tendered (Ex. "A") documents produced by the Minister in responses to the applicant's notice to produce. The notice required the Minister to produce a number of classes of documents, including any notice or advice by the Secretary under s 438, or any direction by the Tribunal under s 440, or any consent by other members of the applicant's family to disclosure by the Department to the Tribunal of information. None of these was produced.)

[44]

(c) The Minister's initial response to the applicant's argument (dated 4 June 2001) 57 By his written submission dated 4 June 2001, the Minister responded as follows: · The files obtained by the Tribunal were not a "document" or "information" within s 438(1)(b). · The mechanism by which the Department participates in the processing of applications to the Tribunal is provided by s 418. By s 418(3), the Secretary to the Department must give the Tribunal Registrar "each document (in addition to the statement of the Minister's reasons mentioned in s 418(2)), or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision." · The terms of s 418(3) are mandatory, and here the Tribunal sought from the Department, and obtained, information and the files for members of the applicant's family on the basis then specified that these files were "relevant" to the applicant's application for Tribunal review. At this time, the family members had all applied for protection visas. · Protection visa applications contain an express authority by which the applicant - "authorise[s] the Australian Government to make any enquiries necessary to determine my eligibility for permanent stay in Australia, and to use any information supplied in this application for that purpose." It follows that any information or document given to the Department by an applicant's family is not given "in confidence" within s 438(1)(b). · Alternatively, in the absence of any statutory definition, in order to be confidential, the information must, under the general law, have the requisite character or quality of detriment or other potential prejudice in the event of unauthorised disclosure (see Coco v AN Clark Engineers (1996) RPC 4 at 47 per Megarry J). (Section 5(1) defines "non-disclosable information" to include "information or matter … (c) whose disclosure would found an action by a person … for breach of confidence".) · But there is no indication here of any detriment or potential prejudice to the applicant's family as a result of the use and disclosure of material in their files. Indeed, the applicant's legal advisors informed the Department that they also represented the other members of his family. This may be construed as a clear invitation to the Department to make use of those files in the applicant's review process. · Moreover, one of the applicant's claims of persecution was grounded upon membership of a social group (his family) and in support of his application he provided information and documentation including statutory declarations by family members. The material shows that his claims were closely bound up with his family's circumstances, and indicate first, their support for, and active participation in, his application; and secondly, of the absence of any prejudice or detriment that could flow from disclosure of their personal information. This is reinforced by the facts first, that at the hearing, the applicant's advisor invited the Tribunal to approach Bahran directly for his comment; and second, that there was no suggestion of any complaint from the applicant's parents concerning the use of their files in connection with is application, they having themselves applied for their own protection visas and participated in the applicant's own process. · Even if it were to be held (contrary to the foregoing submission) that ss 438 and 440 could apply here, there was no evidence to suggest that the requisite notifications under those provisions were not given. (Reliance is placed upon the decision to this effect of Mansfield J in Applicant N - 106 of 2000 v MIMA [2000] FCA 866 at [31] - [32].) · Section 438 is contained in Div. 7, Pt 7 of the Act. It is doubtful whether s 476(1)(a) is available as a ground of judicial review on the basis of an alleged breach of s 438. (Reliance is placed upon the observations to this effect of Mansfield J in Applicant N - 106 of 2000 v Minister for Immigration and Multicultural Affairs [2000] FCA 866 at [33].)

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(d) The applicant's supplementary submissions on confidentiality issues (dated 19 June 2001) 58 Pursuant to leave granted at the hearing on 5 June 2001, the applicant filed further submissions (dated 19 June 2001) as follows: · In determining this application, the Tribunal obtained from the Department the immigration files of the applicant's parents and his three brothers. · Although these other members of the applicant's family did also apply for protection visas, they did so separately from the applicant, and at different times. · The Minister's attempt to invoke the notion of "detriment", as stated in Coco, should be rejected. · In the first place, Megarry J was exercising a general law (equitable) jurisdiction, rather than dealing with a statutory scheme. In s 429 and s 431(2), there are indications of the importance of confidentiality. (Section 429 provides that a Tribunal hearing must be in private. Section 431(2) provides that, in the publication of its reasons etc, the Tribunal must not publish any statement which may identify an applicant or any relative.) · The Department itself acknowledged the need for confidentiality in its Form 993 in which the Department assures applicants that information provided "is used only for the reason it was collected. Our own practices are monitored to ensure that your personal information is kept secure and confidential". · Next, it is questionable whether Australian courts do accept the third condition stated in Coco (at 47); that is, that some form of unauthorised use causing detriment, is required. Reliance is placed upon observations of Spigelman CJ in Hitchcock v TCN Channel Nine Pty Ltd (No. 2) [2000] NSWCA 82 as follows: "The appropriateness of … the third condition in Australian law may be doubted in light of the fact that only the first of the three conditions are set out by Justice Deane, with whom the other members of the court agreed, in Mooregate Tobacco Co Ltd v Philip Morris Ltd (No. 2) (1984) 156 CLR 414, 438. In that passage his Honour referred to the relevant circumstances as extending beyond circumstances in which 'the information was communicated' to encompass circumstances in which information was 'obtained'. With respect to the third condition in Coco, it is an open question as to whether or not there is such a requirement. See Smith Kline & French Laboratories (Australia) Ltd v Department of Community Services and Health (1990) 22 FCR 73 at 121 per Gummow J. See also Attorney General v Guardian Newspapers Ltd (No. 2) (1990) 1 AC 109 at 265, 281-282; cf 256 and 270." · In any event, potential detriment may be inferred from the existence of the risk of disclosure to associates of persecutors of private information, including any medical or criminal history. · No basis exists for concluding that there was consent, express or implied, by family members, to disclosure of confidential information. For one thing, the Department's own Administrative Circular 198 endorses the "strong" advice of the Privacy Commissioner "against relying upon implied consent". · For another, all members of the family were not represented by the same legal advisor throughout. From 25 January 2001, the applicant's father and his brother Mohammad were differently represented. In any event, the retainer of a common legal representative does not import consent to the disclosure of confidential material. · Nor does the fact that an applicant claims to fear persecution because of an association with another person, alone, import consent by that person to the disclosure of their confidential information. · In any event, the applicant limited his claim to his relationship with Bahram and, possibly, his father, Moharram. Neither the applicant's mother, nor his brother Mehram, provided any direct assistance to the applicant in the process. · Although his brother Mohammad provided his statutory declaration to the Tribunal, this occurred on or about 21 February 2001 (in response to a s 424A request given to the applicant); that is, after the Department had provided Mohammad's file to the Tribunal and after the Tribunal had conducted the applicant's hearing. The same position obtained for the applicant's father Moharram, whose statutory declaration was received by the Tribunal on 9 February 2001, after the Department had provided his file. · The information provided by his brother Bahram was limited, and did not cover information concerning his travel to Austria, his asylum claim there, or his Austrian criminal convictions; or the Department's consideration of whether a protection visa should be refused on character grounds. In fact, Bahram had not previously disclosed these matters to the applicant. The specific omission of these matters from Bahram's declarations suggests that he did not want them to be disclosed to the applicant. This inference is supported by the limits placed by Bahram upon the authority given to the applicant's advisor, authorising the release of documents relating to him which could be found "in my brother's file". This qualification is inconsistent with an implied consent to the release of all material held by the Department which related to Bahram. When it released material to the applicant in response to the applicant's advisor's request, the Tribunal did not release any documents from Bahram's file. This indicates that the Tribunal did not consider that Bahram's qualified consent extended to documents on his personal file. · In the face of the Department's expressed acknowledgment of the need for confidentiality, it should not be inferred that the other family members were aware that their files had been sent to the Tribunal, or that the Tribunal would disclose to the applicant the material on their files. Although the s 424 notice dated 25 January 2001 (see above, in the summary of the Tribunal's reasons) may have given a "hint" that the Tribunal was considering issues raised in the applications by the applicant's father and by Bahram, it was not until the hearing that the extent of the Tribunal's use of that material became clear. There is no evidence that the other members of the family were aware of the disclosure of their files. · The disclosure of the contents of a protection visa file to a member of the Tribunal who is not determining an application for review relating to that file, will ordinarily result in the disclosure of confidential information, and so must be the subject of a notice pursuant to s 438(2)(a). Even if an applicant is taken to have impliedly consented to the disclosure of confidential information contained on their personal file to another applicant (or indeed any other nominated person), this does not of itself provide any basis for assuming that the applicant has also consented to release of that information to a member of the Tribunal who is not dealing with their file. (Emphasis added in submission.) · In conducting the review, the Tribunal member obtained access to all of the material contained in the files of the other applicants. Three of those applicants had not yet had their cases finalised by the Department. As they had not yet filed applications for review to the Tribunal, they could not be taken to have consented, by any such application, to the disclosure of their confidential information to the Tribunal for the purposes of conducting a review on their application, let alone the Tribunal member conducting the applicant's review. · Whilst Bahram had previously applied to the Tribunal for review, and some of his confidential material had been disclosed to the Tribunal member conducting his review application, that previous application did not entitle a different member of the Tribunal to view the contents of his file. In any event, much of the material from Bahram's file which was disclosed to the Tribunal member conducting the applicant's review, was material that was provided to the Department after a Tribunal (differently constituted) had finalised Bahram's review.

[47]

(f) The applicant's supplementary submissions on the first ground (dated 29 June 2001) 60 In this submission, the applicant has restated the essential elements of his ground 1 as follows:

The decision which the applicant seeks to review is the decision of the Tribunal made on 15 March 2001 ("the decision"). The decision is a judicially reviewable decision (s 485(1)(a)).
The applicant contends that s 438(2) and (4) prescribe mandatory procedures that must be complied with "in connection with" the making of the decision. A failure to observe these procedures when making the decision provides a ground for judicial review under part 8 of s 476(1)(a). It is irrelevant whether the duty to observe the mandatory procedures was imposed upon the Secretary, or the Tribunal, or both.
The breach of the obligatory procedures pursuant to ss 438(2) and (4) was a material breach. It cannot be safely assumed that the way in which the Tribunal dealt with the confidential information and, therefore, the decision, would have been unaffected had the procedures been complied with. The Secretary would have been required to consider whether any advice on the confidential information was appropriate (s 438(2)(b)). The Tribunal would have been required to take into account any such advice and, even if there was no advice from the Secretary, would have been required to focus upon how the confidential information would be dealt with (s 438(3)). In the event that confidential information was disclosed, as occurred in the present case, the Tribunal was obliged to give a direction pursuant to s 438(4). (In his written submissions, the applicant made a passing reference to MIMA v Yusuf [2001] HCA 30. In my opinion, the decision and reasoning in Yusuf can not assist the applicant here since Yusuf did not deal with any of the provisions presently relied upon by the applicant. In any event, for the reasons I gave in Ragunathan v MIMA [2001] FCA 1142 at pars [58] - [60], there is nothing in the decision or reasoning in Yusuf that might have been invoked by the applicant here.)
In these circumstances, a discretionary refusal of relief sought pursuant to s 481(1), on the basis of its futility, would be inappropriate.

[49]

(h) Conclusions on the first ground 62 So far as any public disclosure is concerned, I accept the applicant's submission that at least some of the information contained in his family members' applications for protection visas was intended to be conveyed by those members, and was received by the Department on a confidential basis. However, no question arises here of any disclosure to the public. The applicant's complaint rather is that the information in question was communicated to the Tribunal. This, in my view, stands in a different position from a communication with the public. 63 Moreover, I agree with the Minister's submission that, in all of the present circumstances, and in particular, the way in which the several protection applications were so closely bound up with each other, the inference should be drawn that each member of the applicant's family seeking protection visas consented to the use of information in each other's application by the Department, and by necessary implication, in any review of the Department's process, whether internal or (as in the case of the Tribunal) external. Consent is, of course, an answer to a claim that information was imparted in confidence which ought not to be divulged (see Smith Kline & French Laboratories (Australia) Ltd v Secretary, Department of Community Services & Health, above, at 86 - 87 per Gummow J). 64 In my opinion, there was no breach of confidence here. 65 Moreover, if it had been necessary to come to the question of relief, I would in any event, have refused relief on discretionary grounds. The discretion to grant judicial review is a general one and even if a technical breach of confidence had occurred, the present circumstances, including the applicant's reliance upon his family's position, would militate against the grant of relief. (see Halsbury's Laws of Australia, Vol 1(2) at 10 - 2587; cf. The King v Commonwealth Court of Conciliation & Arbitration; Ex parte Ozone Theatres (Aust.) Ltd (1949) 78 CLR 389 at 400).

[52]

CONSIDERATION OF THE APPLICANT'S FOURTH GROUND FOR THE GRANT OF JUDICIAL REVIEW 68 The applicant makes the following submissions: · Central to the applicant's claim for asylum was his fear of persecution arising from his involvement in the student protests in Iran in July 1999. The Tribunal accepted that the applicant attended the demonstration, but was not satisfied that his participation gave rise to a well-founded fear of persecution. · This finding was based on two cables provided from DFAT, the first dated September 1999 and the second dated April 2000. In relation to this material, the Tribunal found that - "DFAT's advice does not suggest that the Iranian authorities have any interest in arresting people who merely participated in the demonstrations. I note that the sum total of Mr Abassi's involvement in the student demonstrations consisted of attending a peaceful demonstration on 8 July 1999 and shouting slogans." · The DFAT material was not evidence for the proposition relied upon by the Tribunal. Indeed, the most recent material provided by DFAT in April 2000 contradicts the Tribunal's finding - "A3. We understand Iranian authorities did film demonstrations that took place in various locations in Iran and that such filming occurs routinely. A4. We understand that demonstration participants who did not resort to violence were all finally released or given gaol sentences of 12 months or less, including for those who carried banners in demonstrations or who tore pictures of the supreme leader. Individuals convicted of more serious offences, such as involvement in proscribed political groupings, major violence or setting fire to buildings (including government property) received heavier sentences, in some case[s] gaol terms of 10 years or longer." · The finding of the Tribunal that the applicant does not have a well-founded fear of persecution arising from his participation in the student demonstrations, was based upon the Tribunal's misunderstanding of the DFAT material. Therefore, the decision was based on the existence of a fact which did not exist (ss 476(1)(g) and 476(4)(b)). 69 I cannot accept the argument, for the reasons advanced by the Minister, namely - · The Tribunal's finding (in relation to the applicant's involvement in student protests in Iran) was based on the applicant's evidence at his oral hearing that he attended the student demonstration in Teheran on the first day only for about five or six hours, that is, 8 July 1999. The Tribunal then put to the applicant that there was no evidence to suggest that people were arrested on the first day of the protest because it was a peaceful protest. The relevant finding made by the Tribunal in relation to this particular claim (that the applicant was of interest to Iranian authorities because he attended the student demonstration on 8 July 1999) was that it was not satisfied that the applicant is of interest to the authorities. The Tribunal said that the independent evidence, "does … not suggest that the Iranian authorities attacked student demonstrators on 8 July 1999 or that those involved in the peaceful protest on that day were arrested". This finding was based on independent information set out in the Tribunal's decision from the Human Rights Watch's 2000 Annual Report (cited previously in par 32 of these reasons). · The DFAT material dated September 1999 deals with events which commenced on 9 July 1999, that is, after the applicant had attended on 8 July 1999. (The attack on the student dormitory occurred on 9 July 1999.) The DFAT material dated 19 April 2000 refers to events which took place between 10 and 12 July 2000. Neither of these two cables formed the basis for the Tribunal's finding, nor do they contradict that finding.

Abbasi v Minister for Immigration & Multicultural Affairs

At a glance

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Judgment (55 paragraphs)

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Legislation Cited (2)

Cases Cited (9)

Cited By (5)