Minister for Immigration and Multicultural Affairs v Bhardwaj

6 It is unnecessary to traverse in detail the entirety of the matters put to the Tribunal by the applicant and the Tribunal's approach to each issue raised. It is sufficient to refer to the following key claims advanced by the applicant:

· The applicant's family leased some farm land in Iran which was acquired by the Iranian National Oil Co, with the result that the family was stopped from continuing to farm the land;

· The family protested about this event and sought to prevent the establishment of an oil well on the land, including by the applicant making threats to sabotage work done on the land;

· The family was threatened by authorities that they would be punished if anything happened to the oil well;

· In mid 2000 there was a large fire on the land. The authorities sought out the applicant but he left the country before he was able to be questioned about the fire; · The Tribunal did not accept that the applicant had threatened to sabotage work on the land carried out by the oil company. The Tribunal was also not satisfied that the applicant was of interest to the authorities because of any fire. It observed that he had not mentioned any fire-related claim on arrival in Australia. Critically, the Tribunal observed that the applicant had departed Iran through the airport, using his own valid passport. 7 The Tribunal considered that if the applicant was suspected by authorities of being involved in lighting a fire, it would not have been for a Convention based reason that he would be prosecuted for arson. The s 425 issue 8 Section 425(1) of the Act requires the Tribunal to: "…invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in the decision under review." 9 A failure to comply with that obligation would constitute a jurisdictional error amenable to prerogative relief: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 and Minister for Immigration and Multicultural Affairs v SCAR (2003) 198 ALR 293 at 301, [2003] FCAFC 126 at [38]. 10 The applicant contended that s 425(1) was breached by the Tribunal, without the Tribunal being at fault, because the applicant was not properly advised by his migration agent/solicitor concerning what documents he should bring to the hearing. That contention only requires stating to demonstrate its breathtaking reach. No doubt many applicants for protection visas subsequently obtain documents which are crucial to their applications but this does not mean that s 425(1) is breached when the Tribunal acts to comply with its dictates by inviting an applicant to attend and bring documents with him. 11 The submission put on behalf of the applicant is tantamount to saying that the Tribunal is obliged to invite applicants to attend a hearing, properly advised and having searched for and obtained all possible documents which may support the case for a protection visa and, unless it does so, it will inadvertently breach s 425(1).

12 The applicant contended that the evidence which he, if properly advised would have put before the Tribunal at the hearing, would have shown that:

· He had been charged by the Iranian Revolutionary Court in connection with the explosion of oil wells, or fires at them, on land previously associated with his family;

· His father had been arrested and imprisoned because of the applicant's failure to answer the charges;

· The Revolutionary Court's involvement showed that the authorities considered the explosions to have political connotations (with the prospect of capital punishment) rather than relate to issues of general criminal law; · Three weeks after the applicant left Iran the authorities issued an "arrest note" in respect of him. 13 In March 2001, the Tribunal wrote to the applicant in the following terms: "The Tribunal has looked at all the material relating to your application but it is not prepared to make a favourable decision on this information alone. You…are invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain evidence from another person or persons." 14 The letter went on to list the date, time and place of the oral hearing. The letter also advised the applicant that if he had "any new documents or written arguments that you would like the Tribunal to consider, you should send them now to the Tribunal with the completed form". 15 In response to that invitation, solicitors acting for the applicant advised the Tribunal that the applicant would attend the hearing and that he would require an interpreter. They advised that there would be no other oral evidence. They proffered no further documentary evidence. 16 The alleged ground of jurisdictional error is without substance. As the Full Court said in SCAR at [36]: "It is clear that s 425 of the Act does not require that the Tribunal actively assist the applicant in putting his or her case; nor does it require the Tribunal to carry out an inquiry in order to identify what that case might be: Chen v Minister for Immigration and Multicultural Affairs [2001] FCA 1671." 17 The letter advising the applicant of his right to an oral hearing specifically advised him of his right to present new documents. The Tribunal did invite the applicant to appear before it, with whatever documents he chose to bring to the hearing. The fact that the applicant now has documents which, he says, support his claims for a protection visa is a matter that can be addressed by an application to the Minister under s 48B or s 417 of the Act.

The irrelevant consideration issue 18 The Tribunal's decision will be amenable to constitutional writs in this matter if it reveals that the member has relied on irrelevant material in a way that has affected his exercise of power: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323. 19 This ground is untenable. The material alleged to be irrelevant was relevant to the Tribunal's consideration of the applicant's claim that he would be accused of arson if returned to Iran. The Tribunal then considered whether an acceptance of that claim of the applicant would give rise to a well founded fear of persecution for a Convention reason. 20 In any event the Court accepts the submission of the second respondent that the Tribunal's conclusion that any prosecution would be for a breach of a law of general application was an alternative basis on which the Tribunal rejected the applicant's claim concerning the fire at the oil field. The Tribunal, earlier in its reasons for decision, found that the applicant was not of any interest to the authorities in respect of the fire. Therefore, if the consideration of the material about the facing of charges concerning arson did involve the Tribunal relying upon irrelevant material, such reliance did not affect the exercise of the Tribunal's power.

The procedural fairness issue 21 The applicant contended that during the oral hearing before the Tribunal, he requested an opportunity to tell the member "fully about the fire at the oil well", but the Tribunal refused that request. 22 Denial of procedural fairness, if it occurred, will constitute a jurisdictional error amenable to prerogative writ: see Bardwaj. The proper question for consideration is whether the applicant was denied procedural fairness in the hearing.

23 The transcript of the hearing reveals that the member asked the applicant: "So why would they think that you had set fire to the oil?" The applicant's answer was:

"I would like to ask that you give me about 10 minutes time so I can tell you the whole story precisely so that we don't end up with a further misunderstanding and then the questions are sort of backwards and forwards. It would be much more clear if you would let me talk and tell you the story in one go." 24 The member replied to the applicant that he would prefer to ask questions and have the applicant reply to them, given that he had read the file and listened to the applicant's interview with the case officer. He then said that it wasn't clear to him why the authorities would think that the applicant had set fire to the well as distinct from other members of his family having done so. 25 The applicant then responded with a detailed explanation, which involved him mentioning that he had threatened, in anger, to damage the oil well. The member then said that it wouldn't be surprising in the circumstances that the applicant would be suspected of lighting the fire. 26 I see no denial of natural justice in the above exchange. The member was entitled to control the conduct of the matter before him and ask questions of the applicant. The applicant was not limited in answering the questions asked. Further, the Tribunal appeared to be satisfied, in the course of the discussion, that the applicant may have, as he asserted, been suspected of lighting the fire. 27 It is also evident that the Tribunal permitted the issue to be developed during the course of its questions. Critically, towards the end of the oral hearing the Tribunal gave the applicant the opportunity to put anything further to it. The member said: "…I don't have any other questions to ask you. Is there anything more that you want to tell me that you haven't had an opportunity either during the hearing today or haven't had an opportunity to say previously to your case officer." 28 The applicant did take up that invitation but in so doing did not deal with the oil well issue. 29 The applicant was not denied procedural fairness by the Tribunal. He was merely not permitted to give a 10 minute speech about the oil well when the Tribunal preferred to develop the matter in a question and answer format. Later the applicant was allowed to add anything further that he wished to say. He did not revisit the oil well issue in so doing. This alleged ground of denial of natural justice is without merit. Order 30 As none of the grounds raised by the substituted draft order nisi are arguable the court will order as follows:

1. The application for an order nisi be refused
2. The applicant pay the second respondent's costs of the application. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Dated: 20 May 2004 Counsel for the Applicant: Mr M Howard

Solicitor for the Applicant: Mallesons Stephen Jaques

Counsel for the Second Respondent: Mr P Macliver

Solicitor for the Second Respondent: Australian Government Solicitor