Najarian v Minister for Immigration & Multicultural Affairs

Introduction 1 The applicant is a citizen of Iran. He applied for a protection visa on 14 March 1996 claiming that he was entitled to refugee status because he had a well-founded fear of political persecution if he returned to Iran. His claim was rejected by a delegate of the Minister for Immigration and Multicultural Affairs and by the Refugee Review Tribunal ("the RRT"). The RRT found that the applicant is not a refugee and, as a consequence, affirmed the decision of the delegate not to grant the applicant a protection visa. The applicant has applied to the Court to review the decision of the RRT under Part 8 of the Migration Act 1958 (Cth) ("the Act"). The decision of the RRT 2 The applicant claimed that he was entitled to refugee status as he met the requirements of the definition of a refugee set out in Art 1A of the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Refugees Convention"). The applicant's claim, that he has a well-founded fear of being persecuted for reasons of political opinion if he returns to Iran, was based upon four matters. 3 The first was the applicant's claim that he and a cousin were arrested and imprisoned in 1981 after they protested about the arrest and execution of another cousin of the applicant. The second was the applicant's claim that, notwithstanding his agreement after his imprisonment in 1981 not to take any part in further political activities, he again became active politically when he and his friends distributed to friends, and those they trusted, pamphlets opposing executions that were then taking place in Iran. The applicant claimed that these activities led to his arrest in 1989 after which he and some of his friends were imprisoned without trial and tortured. The applicant said that he and his friends were released after six months as they did not confess and the authorities did not know to which group they belonged. 4 The third matter was the claim of the applicant that after his 1989 imprisonment the authorities refused to grant him an exit permit because of his political activities, although in 1994 he and his wife were issued with passports and exit papers by the Iranian authorities in order to enable the applicant and his wife to participate in an IVF program. 5 The fourth matter related to the applicant's claim that, a short time after his arrival in Australia with his wife, he was informed by his brother of the arrest in Iran of his friends and cousin who had mentioned the applicant's name to the authorities as a member of their group. The applicant claimed that, as a consequence of his previous co-operation with members of the group and their naming of him, the local police had come to his brother's house in Iran searching for him. The applicant claimed that he had been advised by his brother not to return to Iran as, if he did, he would arrested on landing at the airport. 6 The applicant's claims were based on his own evidence as he had been unable to obtain any corroborating evidence or material. Accordingly, his claim to be a political refugee depended upon the extent to which the RRT was prepared to accept his evidence that he was of interest to, and was being sought by, the authorities in Iran by reason of his actual or perceived political activities. 7 The RRT, after referring to the applicant's evidence, stated that it did not find him to be "an impressive witness". The RRT stated that it had "significant doubt" about the applicant's claims that he was imprisoned and tortured in 1981 and 1989. However, the RRT did not finally resolve those matters as it was not satisfied, on the whole of the evidence available, that there was a real chance that the applicant would suffer political persecution should he return to Iran at the date of its determination, being 25 May 1998. The main reasons given by the RRT for that conclusion were summarised by it as follows: · the applicant had stated that he had not engaged in political activity after his release in 1989; · the claim of the applicant that, as a result of his political activities, he was refused a passport for some time after 1989 was found to be unconvincing; · the RRT was not satisfied that the applicant was of any present interest to the Iranian authorities by reason of any of his political activities in the 1980s; · it was "fanciful" to suggest that the applicant would have been given documents by the authorities that permitted him to depart from Iran so that he could participate in an IVF program if he was of interest to the authorities by reason of his political activities; · the evidence about the recent interest of the authorities in the applicant was also found to be unconvincing and was said to be "inconsistent" with other evidence given by him; · accordingly, the RRT was not satisfied that the applicant "is of any present interest to the Iranian authorities". 8 Essentially, the RRT found the applicant not to be a credible witness and therefore rejected his version of the relevant events. Counsel for the applicant, recognising the difficulties confronting him in challenging the RRT's adverse credibility findings against his client (see Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 555-559) argued a number of grounds which were said to involve reviewable error by the RRT. Several discrete issues emerged. The first issue related to the finding of the RRT that the applicant's evidence that his friends had given his name to the authorities, with the consequence that he was in danger of imminent arrest if he returned, was "inconsistent and unconvincing". It was contended that there was no basis for the finding as the applicant's evidence on that issue had not been inconsistent. Counsel also contended that the finding that the applicant's evidence was inconsistent did not satisfy the requirements of s 430(1) of the Act: see Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845. 9 The second issue related to whether the RRT failed to consider whether the fear of persecution might be on the basis of perceived or imputed, rather than actual, political opinion: see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 570-571. 10 A third issue related to whether the applicant's application for a protection visa complied with the requirements of s 45 of the Act and reg 2.07 of the Migration Regulations ("the Regulations"). The applicant contended that his application did not comply with those statutory requirements with the consequence that it was invalid and was not capable of being the subject of a determination under s 65 of the Act to refuse to grant a protection visa irrespective of whether he later provided the information: see Minister for Immigration and Multicultural Affairs v A (1999) 91 FCR 435 at 446-447 per Merkel J and at 460 per Finkelstein J. More recently a majority in Yilmaz v Minister for Immigration & Multicultural Affairs [2000] FCA 906 took a different view of the construction of s 65: see Spender J at [23]-[25] and Gyles J at [94]-[95] cf Marshall J at [54]-[56]. No evidence 11 In its reasons for decision the RRT stated that it found the applicant's evidence concerning the recent interest of the authorities in him to be "inconsistent and unconvincing". The basis for the conclusion that the applicant's evidence was inconsistent was not stated in the reasons of the RRT but was raised by the RRT at the hearing: see the transcript of the hearing at 11-12. It appears that, initially, the applicant had contended that the authorities had become interested in him since his arrival in Australia by reason of his political activities, including those that had led to his arrest in 1981 and in 1989. The RRT put to the applicant that it was "fantasy land" to suggest that the Iranian authorities had given the applicant and his wife a passport and exit stamp if they were still interested in him as a result of those political activities which, on the applicant's evidence, had ceased after 1989. The applicant's response was that he had been "co-operating with the group" after 1989 to which the RRT said: "Shifting sands really, is it not, Mr Najarian?". When the applicant answered "No" the RRT stated that it regarded the evidence given by the applicant as "not convincing". 12 In my view it was clearly open to the RRT to find that the applicant's evidence as to recent events was inconsistent and unconvincing. Whether the RRT's reasoning on that issue was satisfactory, or even whether it is reasonable, is not an issue arising on an application for review under Part 8 of the Act; unsatisfactory reasoning or illogicality do not, of themselves, constitute errors of law: see Singh at [44]; Epeabaka v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 411 at 420-422 and Hill v Green (1999) 48 NSWLR 161 at 174 and 176. Accordingly, the ground of review based on no evidence must fail. Section 430(1) 13 The majority judgment of Black CJ, Sundberg, Katz and Hely JJ in Singh is authority for the following propositions in relation to s 430(1): · a failure to comply with s 430(1) is a failure to observe procedures required by the Act to be observed in connection with the making of a decision and therefore constitutes a ground of review under s 476(1)(a): see [43]; · s 430(1) does not impose any obligation on the RRT to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached, although the RRT is obliged to set out its findings on any material questions of fact: see [44] and [47]; · there is no specific requirement in s 430(1) for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made, although if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process: see [46]; · the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. Consequently, it must make findings on questions of fact "that are central to the case raised by the material and evidence before it" or upon which the "decision, one way or the other, turns", having regard to the process of reasoning the RRT has employed as the basis for its decision: see [48], [56] and [57]; · a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact must be dealt with: see [56]. Accordingly, a failure to comply with s 430 is not made out by reason only of the failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue: see [56] and [64]; · fundamentally, on a fair reading, the reasons of the RRT need to reveal to the parties why the decision went the way it did: see [62]. 14 The reasons of the RRT in the present case, although succinct and possibly overly brief, satisfy the requirements of s 430(1) as laid down in the majority judgment in Singh. The critical material question of fact was whether the RRT was satisfied that the applicant was of any present interest to the authorities in Iran by reason of his actual or imputed political activities. The RRT found against the applicant on that issue as it found his evidence to be unconvincing and, accordingly, rejected it. The rejection was based essentially upon its adverse findings in relation to the applicant's credibility. The material question of fact for the purposes of s 430(1) was not the applicant's credibility. Rather, the fact, objectively determined, upon which the case turned was, as stated above, whether the applicant was of present interest to the authorities. 15 In the summary I have given of the RRT's reasons it is apparent that it explained why it had arrived at the conclusion which led it to reject the applicant's claims. Importantly, the approach of the RRT to the credibility issues was open to it on the material: see Kopalapillai at 552 and 556. One of the reasons given by the RRT was that it found the applicant's evidence concerning the recent interest of the authorities in him to be "inconsistent" with other evidence he had given. As credibility is not a material question of fact, s 430(1) does not require the RRT to refer to all of the evidence upon which each adverse credibility finding is based. Accordingly, the RRT was not required to detail in its decision the "inconsistent" evidence upon which it had based its conclusion. It is relevant that "inconsistency" was only one of the reasons for the RRT's rejection of the applicant's evidence. Other reasons it gave included the finding that the applicant's evidence was unconvincing, and that the applicant was found not to be an impressive witness. 16 On the basis of its various findings the RRT was not prepared to accept the applicant's uncorroborated version of events as justifying or warranting a finding that he was of interest to the authorities in Iran by reason of his perceived or imputed political activities. While the RRT did not expressly refer to the issue of any perceived or imputed political activities of the applicant, its finding that it was not satisfied that the applicant was of any present interest to the authorities implicitly rejected any case of perceived or imputed political opinion raised by the material. 17 I am satisfied that the RRT explained why the decision went the way it did and provided the reasons for its decision in accordance with s 430(1). Of course, if the RRT did no more than state it rejected an applicant's version of events then a serious issue would arise as to whether the reasons complied with s 430(1). However that is not what has occurred in the present case. 18 Accordingly, the grounds of review based upon s 430(1) and the alleged failure of the RRT to consider the case on the basis of perceived or imputed political opinion have not been made out. Invalid application 19 On 14 March 1996 the applicant lodged an "Application for a Protection Visa (866)" in the prescribed form. The prescribed form contained a number of questions relating to the basis for the applicant's claim to be entitled to refugee status. The applicant answered one of the questions by stating that he feared persecution and "torture and ultimately prison" in the event that he returned home but otherwise failed to answer the questions relating to why he had that fear. The answers to those questions were plainly critical to any assessment of the applicant's specific claims under the Refugees Convention and his failure to answer them constituted a substantial non-compliance with the requirement that the prescribed form be completed in accordance with the directions in it: see s 45 and reg 2.07(3). Accordingly, without those questions being answered neither the delegate or the RRT, on a review of the delegate's decision, had any power under s 65 to make a decision to either refuse to grant or to grant a protection visa on an invalid application: see s 415 and Minister for Immigration and Multicultural Affairs v A at 446-447 and 460-461. 20 The prescribed form used by the applicant contained a section relating to documents provided with the application and a section relating to documents to be provided later. The latter section was as follows: "Documents you will provide later 15 Please list all the documents you are not providing with this application, but will be providing later (for example, certified copies of passports, birth certificates, evidence of dependency)." The section was completed by the applicant as follows: "OUR CLAIM FOR REFUGE STATUS (PROTECTION VISA) WILL BE LODGE AT LATER STAGE." [sic] 21 Prior to the claim being lodged, the Department of Immigration and Multicultural Affairs ("the Department") wrote to the applicant informing him that his application had been received and would be processed. He was also informed that if he had any additional information relevant to his application it should be given to the Department as soon as possible, but no later than 21 days after the date of the letter. 22 It is common ground that, approximately a week after the application was lodged, the applicant lodged his "claim" for refugee status with the Department ("the claim"). The claim answered the questions which were left unanswered in the original application. If the claim had been provided in the original application it would have formed part of it and there would be no basis for contending that the original application was an invalid application. 23 On 30 July 1996 the delegate made her decision on the basis, inter alia, of the material contained in the original application and the claim. In the decision, which refused to grant a protection visa to the applicant, the delegate treated the application as a valid application. The RRT, likewise, treated the application as a valid application under the Act. 24 At the commencement of the hearing of the application for review of the RRT's decision by the Court, the applicant applied for, and was granted, leave to raise, as an additional ground of review, the "invalid application" issue. Counsel for the applicant contended that as the applicant had failed to complete the prescribed form in accordance with the directions contained in it the application was, and thereafter remained, an invalid application. 25 Prior to the decision in Yilmaz, a number of recent decisions of single judges of the Court in relation to invalid applications had established that: · the Minister and his delegate have no power under s 65(1) of the Act to make a decision to refuse to grant a protection visa in respect of an invalid application; · the RRT has no power under the Act, on a review of a decision by the Minister or his delegate to refuse to grant a protection visa that has been applied for on an invalid application, to affirm the decision to refuse to grant a protection visa; · the provision of the information omitted from the invalid application after the decision of the delegate, but prior to the decision of the RRT, does not cure the invalidity. 26 See Han v Minister for Immigration and Multicultural Affairs [2000] FCA 421 (Heerey J), Kundu v Minister for Immigration and Multicultural Affairs [2000] FCA 560 (Lindgren J) and Samuel v Minister for Immigration and Multicultural Affairs [2000] FCA 854 (Wilcox J). 27 In Minister for Immigration and Multicultural Affairs v A at 446 I adverted to the possibility of information omitted from an application being provided later, stating that it was "clearly arguable that the subsequent provision of the information might overcome the initial invalidity". In Han, Kundu and Samuel it was held that where that information has been provided after the delegate's decision, but prior to the decision of the RRT, that does not have the effect of validating the invalid application: cf Phanouvong v Minister for Immigration and Multicultural Affairs [1999] FCA 1489 at [25]. In Yilmaz, Marshall J at [54]-[56] agreed with the single judge decisions but Spender J at [23]-[25] and Gyles J at [94]-[95] disagreed with those decisions in holding that the original defect in an invalid application can be cured by the provision of the requisite information to the RRT. In the Minister for Immigration and Multicultural Affairs v A (at 446), in adverting to that possibility I did not intend to suggest that I had formed any view on that issue or on whether Phanouvong was correctly decided as that issue did not arise for decision in Minister for Immigration and Multicultural Affairs v A and had not been argued. 28 The cases to which I have referred did not have to decide the issue arising in the present case. That issue is whether the provision of the omitted information, as foreshadowed in the original application, prior to the delegate's decision cures the defect in the original application. In that regard it is relevant to note that the omitted information is to form part of the material to which the delegate was required to have regard (ss 54 and 55(1) of the Act). I would have some difficulty in reconciling the majority decision in Yilmaz as to the construction and operation of s 65 of the Act with the decisions of myself and of Finkelstein J in Minister for Immigration and Multicultural Affairs v A. However, as I have not found it necessary to resolve that conflict in the present case it may best be left for another day. 29 In order to determine whether the original application became a valid application upon the applicant lodging his "claim" with the Department, it is necessary to consider the relevant aspects of the statutory scheme applicable at the date of the delegate's decision, being 30 July 1996. Those aspects were succinctly summarised by Finkelstein J in Minister for Immigration and Multicultural Affairs v A at 460: "Section 46 of the Migration Act 1958 (Cth) gives the criteria for a valid application for a visa. One requirement is that it be made 'in the way required by subsection 45(2)': s 46(1)(b). Section 45(2) provides that the Regulations may prescribe the way for making an application. The Regulations do make such prescription. Regulation 1.18 provides that the Minister may approve forms for use in making an application for a visa. The approved form for a protection visa is Form 866: Migration Regulations 1994 (Cth), Sch 1, Item 1126. Regulation 2.07(3) provides that an applicant must complete an approved form in accordance with any directions on it." 30 The approved form required that all questions be answered and stated that, if more space was needed, a sheet of paper or extra pages may be attached or inserted. 31 As was observed by Finkelstein J, the Regulations do not prescribe the way an application is to be made. In that regard, at the relevant time, the Regulations required use of the approved form, payment of the prescribed fee (if any) and that the application must be made by an applicant in Australia: see reg 2.07 and Sch 1, Item 1126 Protection (Class AZ) Visa. It is relevant to observe that under the statutory scheme nothing of importance turned on the date on which the application was lodged. 32 Although the applicant declared, in the printed form of the application, that the information supplied with the form "is complete, correct and up-to-date in every detail" his declaration was incorrect as he had not completed his claim for refugee status stating, instead, that it was to be provided at a later stage. 33 The original application of the applicant was plainly incomplete in material respects at the time it was lodged with the Department and therefore was not capable of being a valid application for a protection visa until it was completed. Under the Act a valid application for a protection visa could not be said to have been made to the Minister prior to the lodging of the claim for refugee status on or about 21 March 1996. However, a number of matters have led me to conclude that on or about 21 March 1996, but not earlier, the applicant made a valid application for a protection visa. Those matters may be summarised as follows: