Foroghi v Minister for Immigration & Multicultural Affairs - [2001] FCA 1875 - FCA 1951 case summary — Zoe

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Foroghi v Minister for Immigration & Multicultural Affairs

[2001] FCA 1875

Federal Court of Australia|1951-07-28|Before: Marshall J

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Court

Federal Court of Australia

Decision date

1951-07-28

Before

Marshall J

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicant, Mr Reza Foroghi, is a 39 year old Iranian National. Mr Foroghi arrived in Australia on 13 May 1999. On 12 August 1999, Mr Foroghi applied to the respondent Minister for a protection visa. In a decision dated 22 November 1999, a delegate of the respondent Minister refused to grant Mr Foroghi a protection visa. Subsequently, on 9 December 1999, Mr Foroghi applied to the Refugee Review Tribunal ("the RRT") to review the decision of the delegate. In a decision dated 15 June 2001, the RRT affirmed the delegate's decision not to grant Mr Foroghi a protection visa. The application before the Court seeks judicial review of the RRT's decision. The review is sought pursuant to Part 8 of the Migration Act 1958 (Cth) as it stood at the material time ("the Act").

[2]

Legislative CONTEXT 2 Section 36(1) of the Act provides for a class of visa known as a protection visa. Criteria for the grant of a protection visa are set out under s 36 of the Act and Part 866 of Sched 2 of the Migration Regulations 1994 (Cth). Pursuant to s 36(2) of the Act, a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). Australia is a signatory and party to the Convention. 3 Article 1A(2) of the Convention provides that a refugee is any person who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 4 Under s 475(1)(b) of the Act as it stood at the material time a decision of the RRT is a "judicially-reviewable" decision. Section 476 of the Act sets out the grounds upon which an application may be made to the Federal Court to review a judicially reviewable decision.

[18]

Duty to inquire 30 It was contended that the RRT erred by failing to inquire into two "critical" matters where information was allegedly "readily available". The two identified critical matters were: · Whether Mr Foroghi had been employed by the company in Yazd and whether he was demoted ("the nature of Mr Foroghi's employment"); and · Whether a memorial ceremony for Mr Pouyandeh took place at the Behesht-e-Zahra cemetery. 31 Mr Castelan submitted that failure to fulfil this duty to inquire constituted a reviewable error under s 476(1)(a) of the Act. 32 Mr Castelan submitted that a duty to inquire into the nature of Mr Foroghi's employment and the occurrence of a memorial at the Behesht-e-Zahra cemetery arises from the inquisitorial nature of the RRT. In this regard Mr Castelan relied on observations by Merkel J in Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 at 56, where his Honour held: "Material and evidence, as well as arguments, may be presented to the RRT but its inquisitorial procedures or inquiries are not limited to or by the materials, evidence, or arguments presented to it. In an appropriate case the RRT may undertake its own inquiries and, in some instances, may be obliged to do so." 33 Mr Castelan also relied on observations in Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 1555 at 170 and Teoh v Minister for Immigration & Ethnic Affairs (1994) 49 FCR 409 at 413- 4 to the effect that in circumstances where there is "readily available material" of "critical importance", a decision maker may be under a duty to obtain such material. At the hearing, Mr Castelan particularly focused on the fact that the RRT had not attempted to call Mr Foroghi's alleged employers, or the Behesht-e-Zahra cemetery. 34 Counsel for the respondent Minister, Mr Cahal Fairfield, submitted that the procedure contemplated by the Act for the making of inquiries by the RRT is that set out in s 427(1)(d). It was also submitted that it is not for the RRT to make out a case for the applicant.

[21]

Finding that Memorial at Behesht-e-Zahra did not take Place 39 It was contended the RRT had constructively failed to exercise jurisdiction by finding that the memorial ceremony at Behesht-e-Zahra did not take place. Mr Castelan submitted that the RRT's finding that the memorial at Behesht-e-Zahra did not take place constituted a reviewable error under ss 476(1)(b) & 476(1)(e) because it was based on irrelevant or non-existent material, had no reasonable evidentiary basis and was illogical. In making this submission Mr Castelan purported to rely on comments made by the High Court in Yusuf and Isreaelian v Minister for Immigration and Multicultural Affairs [2001] HCA 30, (2001) 180 ALR 1 at [84] ("Yusuf"), Nagappan v Minister for Immigration & Multicultural Affairs [2001] FCA 863 at [19] and [21], and Cujba v Minister for Immigration and Multicultural Affairs [2001] FCA 699 at [105]. Mr Castelan especially relied on comments in Yusuf by McHugh, Gummow & Hayne JJ (with whom Gleeson CJ agreed) at [84], where their Honours held: "… If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its power, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s476(1)(e) is made out. " 40 In particular, Mr Castelan took issue with the following passage from the RRT decision: "The Tribunal can accept that more than one ceremony might have been held, for example one might be held at the Hassan Mosque, and one at the Emamzadeh Taher cemetery where both Mokhtari and Pouyandeh are buried. Other mosques around Tehran might have been the sites of services (in principle). But there was no logic to a ceremony being held in a different cemetery from the one that the applicant was buried in. Even if Behesht-e-Zahra had some (real or rumoured) connection with the murder, there is no evidence of any memorial events at Behesht-e-Zahra. There were press reports of the Hassan Mosque event and the one at Emamzadeh, and one for another writer and his wife, and the arrest of Pouyandeh's wife in November 2000 after a memorial service for Majid Sharif. If the ceremony the applicant claimed to have attended (with many more people attending that [sic] the ones at Hassan Mosque and Emamzadeh cemetery) in fact took place, the Tribunal would have expected it to receive publicity." 41 In reference to this paragraph the applicant submitted: "This finding is based on non-existent material, has no reasonable or viable evidentiary basis and lacks the support of any probative or logical grounds. In particular: a. the Applicant is not dead; b. there was no evidence before the RRT that the Memorial did not take place; c. there was independent evidence before the RRT that linked Pouyandeh's death to Behesht-e-Zahra cemetery; d. there was independent evidence before the RRT that 40th day ceremonies to commemorate the death of Pouyandeh did take place in several locations; e. the Applicant provided a reply to a specific inquiry from the RRT which stated: "Another reason is that Behesht-e-Zahra is a very important place and each ceremony, which is hold there, can find a large effect on society and many people can know about it. I think they were the reasons that some people decided to transfer one part of the 40th day there…" All of these matters were ignored by the RRT." 42 In oral submissions it was further contended that the Tribunal had failed to recognise that in Iran, the Government controlled the press, and the fact that the memorial at Behesht-e-Zahra was not reported on the internet, did not indicate it had not happened. 43 In reply, Mr Fairfield first contended that the ground of review relied on by the applicant exceeded the allowable grounds of review canvassed in ss 476(1)(b) or 476(1)(e). It was contended that jurisdictional error was restricted to cases where the RRT asked itself the wrong question, took into account an irrelevant consideration, or did not take into account a relevant consideration. It was submitted that the RRT had not made any of these errors. 44 In any event, the respondent submitted that the RRT's findings were open to it on the material in front of it. In written submissions Mr Fairfield addressed the applicant's contentions as reproduced in [41] above. First, it was submitted that the reference to "the applicant" in the passage of the RRT's reasons was obviously intended to be a reference to Mr Pouyandeh. On the other issues raised on behalf of applicant, Mr Fairfield contended that: · it was open to the RRT upon the material before it to find that Mr Foroghi had not attended a ceremony at a cemetery at Behesht-e-Zahra. · the RRT acknowledged the evidence which possibly linked Behesht-e-Zahra to Mr Pouyandeh's death. The weight to be given to that issue was a matter for the RRT. · the RRT accepted that there were ceremonies to commemorate Mr Pouyandeh's death but it did not accept that those ceremonies occurred other than where Mr Pouyandeh was buried. In respect of the applicant's contention that the Iran government controlled the press, the respondent highlighted that the RRT had noted press reports of ceremonies with less people than the one Mr Foroghi referred to, and considered it unlikely that there would be no publicity about the ceremony at Behesht-e-Zahra. Again it was contended that this was a conclusion open to the RRT on the material before it. · the RRT did refer to the letter sent in by Mr Foroghi. The weight to be given to that letter was a matter for the RRT. 45 In the alternative, Mr Fairfield submitted that the RRT's decision is not reviewable on account of it containing allegedly unsatisfactory reasoning.

[22]

Consideration 46 As the Full Court in Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 ("Al-Miahi") observed, a decision made by the RRT is not reviewable on the ground that it was illogically made; see at [35] of Al-Miahi where the following was said: "Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, that would not amount to a an error of law. A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. This, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place…" 47 Further it is not clear that ss 476(1)(b) & 476(1)(e) would allow review based on non-existent material or no reasonable or viable evidentiary basis. However, I will assume, without deciding that ss 476(1)(b) & 476(e) support such review, because I consider that, in any event, the RRT did not constructively fail to exercise jurisdiction. 48 First, it is worth noting that I agree with Mr Fairfield that the RRT did not intend to refer to "the applicant" as being dead, but Mr Pouyandeh. Occasionally the RRT, like other decision-makers, deliver reasons for decision without 100% proofreading. Occasionally mistakes are not discovered even when the best of proofreaders have examined draft reasons. The existence of a typographical error is best acknowledged rather than attempted to be exploited; see CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682. 49 Second, I agree with Mr Fairfield that the findings of the RRT were open to it on the facts. The RRT does not have to accept an applicant's claims uncritically. The RRT considered the applicant's claims and evidence before it, including press reports on other memorial ceremonies and possible connections between Mr Pouyandeh's death and the Behesht-e-Zahra cemetery. It was up to the RRT how much weight it would give that evidence. The submissions made by the applicant in this respect amount to a complaint that the RRT did not accept the contentions advanced on behalf of the applicant. 50 Even if I am wrong and it was not open to the RRT on the evidence to conclude that the ceremony at Behesht-e-Zahra did not occur, this is an immaterial error in that the decision would have remained the same regardless of the alleged error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and Giraldo v Minister for Immigration & Multicultural Affairs [2001] FCA 113. Regardless of whether a memorial took place at Behesht-e-Zahra, The RRT did not accept that the applicant attended a memorial service for Mr Pouyandeh. This conclusion was based on a credibility finding relating the inconsistencies in the applicant's evidence (see [22] above).

[24]

Consideration 54 I do not consider that any basis has been established for the assumption that the RRT was not cognisant of the special considerations that apply in refugee cases. Mr Castelan's submission in this regard in reminiscent of a submission rejected by the Full Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 ("Kopalapillai") at 556-557. At 558-559 the Full Court said: "Whilst a decision maker concerned to evaluate the credibility of the testimony of a person who claims to be a refugee in Australia will need to consider, and in many cases consider sympathetically, possible explanations for any delay in the making of claims, and for any evidentiary inconsistencies, there is not a rule that a decision maker may not reject an applicant's testimony on credibility grounds unless there are no possible explanations for the delay or inconsistency (Taylor, "Informational Deficiencies Affecting Refugee Status Determinations"). Nor is there a rule that a decision maker must hold a "positive state of disbelief" before making an adverse credibility assessment in a refugee case. The reference by Foster J, sitting as a member of the Full Federal Court in Guo's case at 191, to a requirement for a "positive state of disbelief" was not directed to this issue of the determination of credibility, but rather to the question of when an adverse credibility finding will logically found a positive finding that a particular fact asserted by the witness does not exist." 55 In my view the Full Court's answer to the submissions put to it in Kopalapillai apply to the circumstances of the instant matter. To the extant that the submission advanced by Mr Castelan differs from that put in Kopalapillai, the difference lies in the emphasis in this matter on an alleged failure to take into account a relevant consideration. However, putting to one side the issue of refugee cases being special, it has not been established that the RRT was specifically bound to consider such issues in formulating its reasons for decision; see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 29 at 39-42. 56 The RRT, in this matter for the reasons disclosed above did not constructively fail to exercise its jurisdiction. In that: · it did not misunderstand the nature of its jurisdiction · it did not apply a wrong test · it did not misconceive its duty · it did not fail to apply itself to the real question to be decided · it did not misunderstand the nature of the opinion it was required to follow · it did not take into account an irrelevant consideration · it did not fail to take a relevant matter into account; see Yusuf per Gleeson CJ at [41].

Foroghi v Minister for Immigration & Multicultural Affairs

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