Applicant S1693 of 2003 v Refugee Review Tribunal

13 On 25 November 2002, Gaudron J granted leave to the persons named in the Schedule to the statement of claim in the Lie matter to file applications for orders nisi. Her Honour also made an order prospectively remitting all such applications instanter to the Federal Court. The present applicant, who was named in the Schedule, filed such an application on 29 May 2003 which was then remitted to the New South Wales Registry of the Federal Court. On 2 March 2004, the application was transferred, by consent, to the Western Australian Registry of the Court.

14 The application before the High Court was for an order nisi for the issue of constitutional writs.

15 Directions were given prior to the hearing in this matter for the filing of Contentions of Fact and Law by both applicant and respondents and this was done. The applicant was then legally represented but by the time of the hearing his solicitor had ceased to act. The applicant relied at the hearing upon the affidavits and written contentions filed by his former solicitor.

The Grounds of the Application 16 The grounds of the application as appear from the Contentions filed on behalf of the applicant are as follows: 'Ground 1 35. The RRT committed jurisdictional error by failing to accord to the Applicant procedural fairness or natural justice: Particulars (a) The RRT represented to the Applicant by its letter of 24 November 1995 that the RRT had requested copies of the Department's documents about the Applicant's case to be forwarded to the RRT and that the Applicant should not send any documents or written documents that he had already provided to the Department. (b) The RRT represented to the Applicant by its letter of 9 May 1996 that the RRT was considering all the documents in relation to the Applicant's case, which would have included documents the Country Information before the Department and the documents by [the applicant's brother] to the Department. (c) The Applicant was misled by the RRT into thinking that the Department had sent to the RRT, and the RRT had looked at, all the documents referred to in the Delegate's Decision and the documents provided to the Department by [the applicant's brother], which documents were relevant to the Applicant's claim. (d) The RRT had in fact only looked at one of the items of country information referred to in the Delegate's Decision, namely, Information and Research Branch, Immigration and Refugee Board, Ottawa, Information Request No IRN 17391.E of 16 May 1994. (e) The Applicant, by reason of having been so misled, did not consider it necessary to bring to the RRT's attention the documents that the RRT had not been sent and had not looked at, and did not take steps to bring them to the RRT's attention. Ground 2 36. The RRT committed jurisdictional error in failing to accord to the Applicant procedural fairness or natural justice: Particulars (a) The Applicant repeats particulars in subparagraphs 35(a), (b), (c) and (e). (b) The Applicant, through [the applicant's brother], would have presented oral submissions differently. Ground 3 37. The RRT committed jurisdictional error by failing to accord to the Applicant procedural fairness or natural justice: Particulars (a) The RRT took into account material relating to [the applicant's brother's] application to the IRT in respect of an appeal against a refusal of the Applicant's prior visitor visa application. (b) The (sic) did not give the Applicant notice that it intended to take that material into account and therefore did not give the Applicant an opportunity to comment on that material. (c) The RRT took an adverse view of the Applicant on the basis of that material in concluding that the Applicant had shown himself ready to deceive the Australian Immigration authorities and the IRT and that this therefore raised a certain scepticism about the Applicant's credibility in general. Ground 4 38. The RRT committed jurisdictional error or acted in excess of jurisdiction: Particulars (a) The RRT was required by s 424 of the Migration Act to take into account all relevant considerations. (b) [The applicant's brother] gave oral evidence during the RRT hearing that Iranian authorities would know that the Applicant had applied for refugee status in Australia. (c) Dr Ravazi gave oral evidence during the RRT hearing that laws were passed in Iran penalising Iranians who criticised the Iranian Government to foreigners and that this would apply to people who had applied for refugee status overseas. (d) In ignorance of the aforesaid evidence, the RRT concluded that there was no evidence to suggest that the Iranian authorities could be aware of the Applicant's application for refugee status and accordingly there was no real chance that the Applicant could be persecuted for this reason. Ground 5 39. The RRT committed jurisdictional error by carrying out its review otherwise than in the way required by s 424(1) of the Act, in that it did so without having all the documents that the Delegate had, the Secretary of the Department having failed, contrary to s 418(3) of the Act, to give to the Tribunal all the documents referred to the Delegate's Decision and the further documents provided by[the applicant's brother] to the Department.' (sic) The Facts 17 The affidavits filed on behalf of the applicant commenced with the affidavit of his solicitor in the High Court proceedings, Mr Joel, who exhibited the delegate's decision record and the reasons for decision of the Tribunal. That affidavit did not otherwise deal with matters relevant to the question of procedural fairness raised in the contentions. Two affidavits were filed in support of the substantive application in this Court. One was sworn by the applicant on 24 May 2004 and the other by his brother on 20 May 2004. 18 The affidavit sworn by the applicant's brother referred to the procedural history and to news clippings and information sheets which he said he had provided to the Department '… to show that a person whose case was similar to [the applicant's] and who was returned to Iran disappeared after returning to Iran and his family never saw him again'. Other documents provided were said to show '… what happened to Mujaheddin supporters on their return to Iran and that they are labeled (sic) as anti-Islamic'. Although he could not remember precisely what appeared in the clippings and information sheets, the applicant's brother was of the opinion that the information was favourable to the application for a protection visa as demonstrating a real chance of persecution if the applicant were returned to Iran. 19 The applicant's brother had assisted the applicant in all aspects of the preparation and lodgment of the application for review in the Tribunal. He read the letters of 24 November 1995 and 9 May 1996 from the Tribunal. He said of the letter of 24 November 1995: 'I understood the letter to mean that all the documents that I had submitted for [the applicant] and that were considered by the Department were going to be given to the Tribunal and that the Tribunal would look at these documents once they were received. I also understood that, as I was assisting [the applicant] with all aspects of his case, I should not send any documents to the Tribunal that I had previously provided to the Department.' 20 The applicant's brother referred to additional material which he had presented to the Tribunal at the hearing comprising newspaper clippings, sheets of information and letters which he had gathered. He said that he read the decision of the Tribunal and that it did not refer to any of the documents which he had provided. Had he known that the Tribunal did not have, or did not look at, all the documents he had provided to the Department, he would have submitted those documents to the Tribunal and brought them to the Tribunal's attention. 21 The applicant's brother did not say in his affidavit that the materials listed by the delegate in his decision record included any of those provided by him. On that question, I am satisfied that the materials listed by the delegate did not include any newspaper clippings or information sheets or letters of the kind generically described by the brother. Nor is there any suggestion in the affidavit by the brother that he formed any view, one way or the other, about the transmission to the Tribunal of the materials listed in the delegate's decision record. 22 The applicant's own affidavit takes the matter no further. He relied upon his brother to make representations to the Department and to the Tribunal because of his limited grasp of the English language and his lack of familiarity with the Australian legal system. 23 The applicant's brother was not cross-examined on his affidavit. Counsel for the Minister said that the decision not to cross-examine him did not involve any acceptance of the contentions in the affidavit. It was really a matter of just looking at the documents. A solicitor in the office of the Australian Government Solicitor swore an affidavit saying that she had checked the file of the Department and the Tribunal and had been unable to find any documents that fitted the description given by the applicant's brother. The departmental search had also been unable to find such documents. 24 I have no reason to disbelieve the brother's word when he says that he provided some newspaper clippings and like material to the Tribunal. He was assisting the applicant. There was no reason for him to lie on this point. The risk of detection of a lie would have appeared high to the ordinary person. He is not likely to have been mistaken although it is always possible. It appears from an exchange between the Tribunal member and the applicant at the hearing and also between the Tribunal and the applicant's witness, that the Tribunal would not receive newspaper material in a foreign language unless it was translated. In my opinion it is more likely than not that the applicant's brother did send some newspapers and other materials to the Tribunal and that at least the newspaper material, not being translated, was not considered. Beyond the very general description of the material as favourable to the applicant and indicative of what had occurred to Mujaheddin supporters who were returned to Iran, there was no detailed description of its content. 25 At the close of the Tribunal hearing the applicant was given a further week to submit additional information or evidence. He was also told that if any of the information were not in the English language it would have to be accompanied by a translation by an accredited translator. 26 An affidavit by Janine Murfet, the Director of the Protection Division Support Section of the Department, referred to country information available both to the Department and to the Tribunal. All of the documents except the Ottawa Refugee Board Report was available to the Tribunal through departmental resources at the time the Tribunal's decision was made and the Tribunal expressly referred to the Ottawa Refugee Board Report in its reasons. All of the documents related to country specific information. 27 There was no positive evidence to establish that the Tribunal did not receive the documents referred to in the delegate's decision record. At the hearing on 11 June 1996, the Tribunal member said that he had '… read all the documents on your files including all the documents you have sent to the Immigration Department and to the Tribunal'. On the other hand, the Tribunal member was undoubtedly referring to what had been forwarded to the Tribunal. His comment did not establish whether the documents referred to in the delegate's decision had been so forwarded. The absence of any positive evidence that the relevant documents had been sent by the Secretary to the Tribunal leads me to believe that it is more probable than not that they were not included in the departmental file. It would have been an easy matter to state, by reference to the departmental file, that the documents had been forwarded. In my opinion, the most likely inference is that they were not. It is not enough to say that the onus rests upon the applicant. This was a matter peculiarly within the knowledge of the Department and the Secretary and the Secretary's officers. Having regard to what happened in other cases, including Muin and Lie, it would be unreal to suppose, absent explanation, that anything different happened in this case. 28 That is not the end of the matter however. It is a long way from establishing procedural unfairness. It is necessary next to consider the Tribunal's reasons for decision and then, against that background, the various grounds of application. The Tribunal's Reasons for Decision 29 It is not necessary to set out the Tribunal's reasons in detail. Importantly it decided the case on the basis of the applicant's credibility. In so doing it referred, inter alia, to the following considerations and inferences: 1. The applicant's readiness to deceive Australian immigration authorities and the IRT in relation to his reasons for travelling to Australia. 2. Despite claiming that he was in hiding from 1982 to 1987 other information supplied by the applicant showed that he was working for the same employer, namely his cousin's accountancy firm, from 1982 until he left Iran and that he also lived at the same address. 3. If as the applicant claimed, he had a pro-Mujaheddin profile, it was impossible to see how he could have remained free from official detection given the long period of time he worked and lived at the same address. 4. The applicant told the delegate that his cousin's firm for which he had worked had closed down shortly prior to his departure for Australia so that he would face unemployment if he returned to Iran. A similar claim was made to the Tribunal where it was said that the business had been closed down two weeks before he had come to Australia. Previously the applicant had claimed to the IRT that he was in stable ongoing employment. The Tribunal found the timing of the alleged closure of his cousin's business to be implausible. 5. Given the applicant's claim that his house was watched and that he was often followed when he left the house, the Tribunal was unable to see how it was possible for him to leave the country undetected. 6. There was no explanation given for the continuation of surveillance of the applicant over the period which he claimed. 7. Although it was not impossible that the applicant could have departed Iran using bribery to facilitate that process, his ability to depart Iran did count against him to a very significant extent. 8. It was difficult to see how a person, wanted by the authorities as the applicant claimed to be, could have obtained a certificate of school completion issued in April 1995. 30 The Tribunal had regard to the proceedings before the IRT and in particular evidence given by the applicant's brother in that tribunal. His brother had asserted that their mother who had been advised that she would be eligible to migrate to Australia in a preferential family category had chosen to remain in Iran. The applicant's brother had also told the IRT that 'two of his brothers living in Australia now wish to return to Iran because they had been unable to find employment in the areas for which they had qualifications'. The Tribunal was unable to accept that these statements were consistent with the applicant's claim that he was a Mujaheddin supporter wanted by the authorities. It was part of his case that his mother had been seriously harassed and put at risk because of his Mujaheddin connection. 31 In the end the Tribunal did not believe the applicant's claims although it was prepared to accept that he was punished in 1992 for being found in receipt of Mujaheddin literature. 32 The Tribunal also considered a sur place claim advanced by the applicant. It could find no evidence to suggest that the Iranian government would be aware of his application. 33 Against this background the grounds of the application can now be considered. In so doing it is necessary to bear in mind that to attract the application of the constitutional writs sought, it is necessary to show jurisdictional error on the part of the Tribunal. Procedural unfairness, which lies at the centre of the applicant's case, can constitute such error. Ground 1 - The Failure to Transmit Documents before the Tribunal 34 Having regard to the findings of fact made by the Tribunal any failure to transmit the documents referred to in the delegate's decision record would have made no difference to the outcome which depended entirely upon the Tribunal's assessment of the applicant's credibility. There is nothing to suggest any basis upon which the applicant's case could have been salvaged by any country information before the delegate, even on the assumption that none of it was before the Tribunal. This is true also of the documents said to have been sent to the delegate by the applicant's brother. The most that can be said of them is that they were of a general character relating to the treatment given to known or suspected Mujaheddin sympathisers on their return to Iran. They were at least in part untranslated. Procedural fairness did not require the Tribunal to translate them. 35 In relation to the departmental documents there was no evidence that the applicant or his brother were misled or would have acted differently in relation to the country information in the delegate's decision record if they believed it had not been sent on to the Tribunal. There is evidence that the Tribunal had access to all the relevant documents. It referred to a number of country information documents including the Ottawa Refugee Board document referred to the delegate's record. It also mentioned Amnesty International reports of 1993, 1994 and 1996. In my opinion no procedural unfairness was made out under this ground. Ground 2 36 This ground fails for the same reasons as ground 1. Ground 3 - Taking into Account Material Before the Immigration Review Tribunal 37 The Tribunal referred in its reasons for decision to matters that had been put to the Immigration Review Tribunal in 1995 in support of the applicant's application for a visitors visa. One of those matters was the delegate's reference to the evidence of the applicant's employment record tendered to the IRT and the certificate of school completion put before that tribunal. The Tribunal questioned the applicant's brother at the hearing about the evidence he had given to the IRT in relation to their mother's choice to remain in Iran and the choice of two of the applicant's brothers to do likewise. 38 These matters were fairly raised particularly with the applicant's brother who was assisting the applicant with his application. There was additional time for further submissions to be provided at the close of the Tribunal hearing. There was, in my opinion, no unfairness in the way that the applicant was dealt with in respect of the materials put before the IRT. Ground 4 - Sur Place Claim - Failure to take into Account Relevant Considerations 39 This ground raised material which, according to counsel for the respondent, could have been raised as a ground of judicial review before Carr J, if it is in truth, as it appears to be, a ground asserting failure to take into account a relevant consideration. I agree that there is no proper basis upon which a ground of review which could have been raised before Carr J should now be raised in these proceedings which were brought in the High Court on the basis that they sought review on grounds not available in the Federal Court under the old Part VIII of the Act. 40 In any event, this ground essentially complains of factual error. It will not support a finding of jurisdictional error, which would in turn support a claim for the issue of a constitutional writ. Ground 5 - Failure of Secretary to Transmit Documents 41 It was submitted on behalf of the applicant that the failure of the Secretary to transmit the country information documents to the Tribunal was a contravention of s 418(3) of the Act and s 424 and constituted a jurisdictional error. There is no support in Muin v RRT for the proposition that a failure to comply with s 418(3) could amount to jurisdictional error - ([21] Gleeson CJ, [45] - [48] and [56] Gaudron J, [182] Gummow J and [326] Callinan J). In S487/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1309, Sackville J held the Secretary's compliance with s 418(3) was not a pre-condition for the exercise of the Tribunal's review function. His Honour also held there was no obligation on the Tribunal to consider the documents described in s 418(3) as part of the review process. An appeal against that decision was dismissed by the Full Court in S487/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 125. I applied his Honour's approach in P38/2003 v Refugee Review Tribunal [2004] FCA 1077. 42 In any event, even if it were the case that a failure to comply with s 418(3) could amount to such an error, I consider, in the absence of any practical consequences to the outcome of the Tribunal's decision, that relief should be refused on that discretionary basis. Conclusion 43 For the preceding reasons, none of the grounds is made out and the application will be dismissed with costs. I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Solicitor for the Australian Government Solicitor First Respondent:

Date of Judgment: 23 November 2004