Miandoab v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 DRUMMOND J: This is an appeal from Hely J who refused to grant review under s 476 of the Migration Act 1958 (Cth) of the decision of the Refugee Review Tribunal ("the Tribunal") to refuse the appellant a protection visa. The appellant is a citizen of Iran who arrived in Australia on 8 October 2000. 2 On 24 October 2000 he applied for a protection visa. On 8 December, a delegate of the respondent determined to refuse the visa application. A few days later the appellant applied for review of the decision by the Tribunal. 3 In March 2001, the Tribunal decided to affirm the decision of the delegate to refuse the visa. The appellant promptly filed an application in this Court for review of the Tribunal decision and that matter came before Hely J on 6 August, when his Honour dismissed the application. A notice of appeal followed. Throughout the proceedings prior to the hearing before Hely J, the appellant had legal representation. At the hearing before Hely J, the appellant had what appears to be representation by a lawyer acting on a pro bono basis. He is not legally represented on this appeal, however. 4 The appellant's claim to be recognised as a refugee was based on his having come under the adverse notice of the Iranian authorities because of the assistance he gave to people who were political opponents of the regime. He also claimed that he came under adverse notice of the authorities because of his involvement in anti-government student demonstrations. He claimed he was detained for a short while and physically ill-treated and that his father procured his release by depositing the title deeds to a property owned by the father with the authorities. The appellant said he left Iran after having made contact with a person the Tribunal described as a "people smuggler". He used his own passport to leave Iran. 5 The Tribunal refused the visa application essentially because it refused to accept the appellant as a reliable informant about his experiences in Iran. The Tribunal reviewed the variations in the accounts he gave of these experiences both in his initial interview after arrival in Australia in a statutory declaration he gave to the Tribunal, and in his oral evidence to the Tribunal. The Tribunal also considered that his ability to leave Iran on his own passport told against his claim to have come to the adverse attention of the Iranian authorities. 6 The appeal came before Hely J on the following amended grounds. The Tribunal erred in law in failing to make the following material findings of fact: (a) the Iranian government sanctioned extrajudicial detention and torture, and (b) whether the black list was or was not a sufficiently reliable indicator of those individuals who had a well-founded fear of persecution by the Iranian government. 7 Hely J pointed out that neither of the amended grounds of appeal could be made out because the Tribunal did not accept what the appellant had to say about what had happened to him in Iran. It did not accept he was ever on any government black list, therefore his Honour held there was no reviewable error by the Tribunal in failing to make a finding on what would have been the significance for the appellant's claim for a protection visa if the Tribunal had been prepared to accept that he was on such a black list. Nor did the Tribunal accept that the appellant was detained and ill-treated as he claimed. There was therefore, as Hely J held, no reviewable error by the Tribunal in failing to make a finding on what would have been the significance for the appellant's claim to be a refugee if the Tribunal had been prepared to accept the appellant's claim that he had been so dealt with. 8 It cannot be said, in view of the Tribunal's evaluation of the information available to it, including the various claims made by the appellant and the variations between them and what the Tribunal had to say about the significance of his having left Iran on his own passport, that there was no material before the Tribunal that entitled it to treat his evidence as unacceptable. 9 The complaint that the appellant made in oral submissions today about the proceedings before the learned primary judge whose decision alone is under appeal in this Court was to the effect that the lawyer who appeared before him in that Court spoke mainly about what I understand to be conditions in Iran and did not address the Court on the appellant's own experiences there. Whether or not the appellant was in fact given that information by the lawyer who appeared on that occasion for him, he himself not being present in Court, it is plain that it cannot be correct that the appellant's lawyer did not draw the judge's attention to what the appellant said had happened to him in Iran. Hely J dismissed the case, as I have indicated, on the basis that the Tribunal was entitled to form the view it did about the unreliability of the appellant's claims as to what happened to him in Iran. 10 Most of the appellant's submissions to this Court were directed to complaints about the way the Tribunal dealt with him at its hearing. 11 He says, for example, that he was told by the Tribunal member that the member considered he had given a consistent account at all times of what had happened to him and that the member would try to procure the appellant's release from detention. I note that in its reasons the Tribunal did say that there was enough consistency and continuity of information in the overall presentation of the appellant's case to indicate that the record of the initial interview was generally an accurate account of the position that the appellant subsequently maintained. However, it appears from a reading of this part of the Tribunal's reasons that it was there expressing the view that there was consistency between what the appellant initially told departmental officials and the written material that he made available to the Tribunal. A significant reason for the Tribunal refusing to accept the appellant as reliable was that it considered there were large variations between the account the appellant gave to the Tribunal in his oral evidence to the Tribunal and in that earlier material. The Tribunal, for example, spoke of the significantly different account the appellant gave in oral evidence from the accounts he had given earlier as to matters including the duration of his custody, what was the thrust of his first interrogation, who was its subject - whether it was the appellant or his friend Reza, and also as to whether he was ever denounced by Reza to the authorities. 12 The appellant also complained in this Court that part way through the hearing before the Tribunal the person assigned to interpret for him said that he or she was having difficulty in being able to interpret properly for the appellant. It appears that this is the first time that this complaint has been made and that is that it was not raised in the proceedings before Hely J. This Court, being concerned with an appeal from Hely J, cannot give any effect to the assertions made by the appellant from the bar table about that matter now. 13 A number of the appellant's other submissions were directed to pointing to factual errors made by the Tribunal in the conclusion it reached. But they unfortunately are not matters that this Court can deal with, confined as it is to determining whether there was error in the decision of Hely J. 14 For the reasons I have given I do not consider that the appellant has shown any error in what Hely J had to say or in the conclusion he reached. I would therefore dismiss the appeal. 15 MANSFIELD J: I agree with the learned presiding judge, for the reasons he has given, that no error on the part of Hely J has been demonstrated and that the appeal should be dismissed. 16 EMMETT J: I also agree, for the reasons given by Drummond J, that no error has been demonstrated on the part of Hely J in dismissing the application for an order of review of the decision of the Tribunal. Accordingly, I agree that the appeal should be dismissed. 17 DRUMMOND J: The order of the Court will therefore be that the appeal is dismissed. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond, the Honourable Justice Mansfield and the Honourable Justice Emmett.