NASB v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2004-02-25|Before: Tamberlin JJ

introduction 1 The appellant is a national of the Islamic Republic of Iran. He is a single man and a Shi'a Muslim. He arrived in Australia without documentation on 12 December 2002 and claimed protection on arrival. He has been in immigration detention ever since. 2 The appellant claims that his father held an important military position in the government of the Shah of Iran, and was executed in 1981 following the Revolution. The appellant's central claim is that he has suffered various forms of persecution by the Iranian authorities as a result of their suspicion that he supports the monarchist cause in Iran. 3 On 24 December 2002 the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural and Indigenous Affairs ('the Department'). On 28 January 2003, a delegate of the respondent (respectively 'the Delegate' and 'the Minister') decided to refuse the application. Apparently the appellant received the Department's notification of the refusal on 4 February 2003. 4 On 5 February 2003, the appellant applied to the Refugee Review Tribunal ('RRT') for review of the Delegate's decision. The RRT conducted a hearing on 9 May 2003. The appellant gave evidence. At the hearing, the appellant was assisted by Ms Alison Ryan of Refugee Advice and Casework Service (Australia) Inc and by an interpreter in the Persian language. 5 On 30 May 2003 the RRT decided to affirm the Delegate's decision. 6 On 17 June 2003 the appellant applied to this Court under s 39B of the Judiciary Act 1903 (Cth) for orders in the nature of mandamus and certiorari in respect of the RRT's decision. At the hearing before his Honour, the appellant was not represented, but he was aided from time to time by a barrister who was present in court. On 2 October 2003, the primary Judge dismissed the appellant's application with costs.

FINDINGS AND REASONS OF THE RRT 11 The RRT accepted that the appellant was an Iranian national but thought that significant aspects of his evidence were implausible and inconsistent with reliable independent evidence. Indeed, the Member thought that the appellant had fabricated some aspects of his claims, and misrepresented and exaggerated others in an attempt to create for himself the profile of a refugee. The Member said: 'I do not consider the applicant to be a credible or reliable witness.' 12 The RRT accepted that the appellant's father was a military officer during the Shah's régime. The Member had doubts as to whether the father was executed (the Member noted that the father's salary continued to be paid for almost a year following the date of his alleged execution, and that the confiscation of property did not occur for almost two years after the alleged execution). 13 While the Member accepted that there were military personnel who served in the Shah's army who were imprisoned or executed following the Revolution, he observed that there was no independent evidence to suggest that this was the fate of all. 14 Notwithstanding his doubts, the Member was prepared to accept, for the purpose of dealing with the application, that the appellant's father had been executed, that a family residential property was confiscated, and that no superannuation or insurance pay out was made after the father's death. The Member was not satisfied, however, that either the confiscation or the non-payment caused the appellant such serious harm that it qualified as 'persecution': cf Migration Act 1958 (Cth) ('the Act') s 91R(2). 15 The RRT accepted that during his school days, the appellant was treated less favourably because his father had been executed, but noted that the appellant had completed school and obtained his high school diploma. Again, the RRT thought his treatment at school not so serious as to amount to persecution. 16 The RRT accepted that the appellant was not offered a place at university, even though he had the necessary academic qualifications. The RRT thought the evidence did not show, however, that the appellant had incurred 'significant' detriment or disadvantage from his failure to be offered a place at university. 17 The RRT accepted that the appellant was regarded with some suspicion during the two year period of his military service, that he was questioned on three occasions about his contacts and activities, and that on one of those occasions he was physically assaulted. Overall, however, the RRT was not satisfied that the treatment to which the appellant was subjected during his military service was serious enough to be categorised as persecution. 18 The appellant claimed that he was not able to obtain government employment. The RRT noted that the claim was not that he had ever been interested in obtaining, or had applied for, government employment. The RRT accepted that a person in the appellant's situation would have difficulty in obtaining government employment. But the evidence indicated that the appellant was able to make a living as a mechanic and as a trader. In the circumstances, the RRT was not satisfied that any restriction on the appellant's ability to obtain government employment amounted to persecution. 19 The RRT did not accept a claim made by the appellant that he was denied the right to acquire and own property. 20 The RRT also did not accept an unparticularised claim, in support of which the appellant offered no evidence, that the appellant was discriminated against in relation to sport. 21 In regard to the appellant's claims to have been detained on many occasions because of his supposed political opinion, the RRT noted that it was clarified that the claim was that he had been detained on five occasions only between 1995 and 2002 (in addition to the three occasions during military service previously mentioned). The appellant said he was not charged with any offence on any of these five occasions. 22 The first two occasions occurred when the appellant was trading in the street. He thought, at the time, that he was being detained because of his work. He was asked questions, including his name and the names of his parents. The RRT thought it implausible that if the appellant was being targeted because of his father's profile or his own actual or imputed political opinion, he would have been asked his name or his parents' names. Overall, the Member accepted that these two incidents occurred, but not that the reason for them was the appellant's association with his father or his own actual or imputed political opinion. Rather, the Member thought the appellant was briefly detained in 1995 and 1997 because he was working as a street trader. 23 The appellant claimed that the last occasion of detention occurred six months prior to his departure from Iran. He claimed to have been stopped at a Basij checkpoint on suspicion of having consumed alcohol. He claims to have been lashed the next day. The RRT noted that medical evidence provided by the appellant referred to scarring but not on the back or legs 'which is where lashes are administered'. But, even if the appellant was lashed, the Member did not accept that this was because of imputed political opinion. Rather, the Member said, it was because the appellant was suspected (correctly or not) of having consumed alcohol, and therefore of having contravened a law of general application in Iran. 24 The other two occasions of alleged detention were said to have occurred in 1999 and 2001. These allegedly involved raids on the appellant's house, and the removal of books and his writings on one occasion, and of videos and cassettes on the other. The Member did not accept that these incidents occurred at all. The Member noted that he had rejected the claim by the appellant that he had been detained previously in 1995 and 1997 for the reasons suggested by the appellant. The Member observed that the appellant made it clear at the hearing that he had not been involved in any political activities or participated in political activities or even expressed his political opinions to anyone. The Member referred to independent country evidence to the effect that the situation in Iran in relation to those associated with the Shah's régime has moderated over the years since the Revolution, and that even high ranking figures in the previous régime have returned to Iran without encountering problems. 25 The RRT did not accept that the appellant was of ongoing interest to the authorities in Iran. 26 The RRT also did not accept the appellant's claim that he was not allowed to leave Tehran without permission, and rejected his claim that he departed Iran using a false passport. 27 Ultimately, the RRT was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.

REASONING OF THE PRIMARY JUDGE 28 The primary judge formulated the grounds of review relied on by the appellant in the proceeding at first instance as follows:

that the RRT had failed to make a bona fide attempt to exercise its power;
that the RRT had not acted in good faith and was biased against him;
that the RRT's decision was unreasonable in the sense that its determination was irrational, illogical, and not based on findings or inferences of fact supported by evidence;
that the RRT failed to observe the requirements of natural justice. 29 For reasons he gave, his Honour found that none of these grounds was made out. Only the fourth was pressed on the appeal, and, as will appear, it was pressed in a respect which was not, and could not have been, raised by the appellant before his Honour.

REASONING ON THE APPEAL 30 Mr I Young of counsel was briefed on a pro bono basis on the day immediately preceding the date fixed for the hearing of the appeal. The Court has been assisted by Mr Young's formulation and presentation of the appellant's argument on the appeal. 31 The appellant was granted, with the Minister's consent, leave to file an amended notice of appeal. Mr Young initially indicated that he proposed to argue three grounds of appeal, but later abandoned two of them. Those abandoned were:

that his Honour had erred in failing to find a non-compliance by the RRT with s 424A of the Act; and
that his Honour erred in failing to find that the RRT erred by considering the appellant's claim only as one based on 'actual or imputed political opinion', and not also as one based on 'membership of a particular social group'. 32 This left but one ground of appeal, which depended on an application by the appellant to lead further evidence on the appeal, pursuant to s 27 of the Federal Court of Australia Act 1976 (Cth). 33 The appellant applied by notice of motion filed on the hearing, for leave to file and read on the appeal two affidavits sworn 12 February 2004, one by the appellant and the other by Frances Milne. Ms Milne is the Secretary of the Balmain Uniting Church Council. She states that part of the commitment of the congregation of the Balmain Uniting Church is 'to provide assistance to refugees detained at the Villawood detention centre'. For the purposes only of the appeal, counsel for the Minister indicated that he would not wish to cross-examine the deponents, and confined his objection to the reception of the evidence to that of relevance alone. 34 Without objection by counsel for the Minister, we permitted the two affidavits to be read, subject to our ruling on the Minister's objection. 35 The additional evidence, described in more detail below, is to the effect that in January 2004 the appellant received by mail from a friend in Iran (identified as 'M" in the appellant's affidavit), a 'Summons' and a 'Notice' requiring the appellant to appear at the Shahid Beheshti Judiciary Complex in Tehran on 3 February 2003 and 1 June 2003, respectively. The evidence is said to show that, contrary to the RRT's finding, the Iranian authorities do have on ongoing interest in the appellant. 36 Ms Milne's affidavit was to the effect that the appellant gave her the two documents in late January 2004, and that, without delay, she caused translations of them from Farsi into English to be obtained. The English translations are annexed to Ms Milne's affidavit. Ms Milne's affidavit is uncontroversial and no more need be said of it. 37 In his affidavit, the appellant deposes that the two documents were delivered to his sister's home, where he lived before leaving Iran for Australia. He states that his nephew attends the same school as the son of his friend 'M', and that the Summons and Notice were 'smuggled' by his sister to 'M' via the children, then posted by 'M' to the appellant in Sydney. The appellant says he received the two documents in late January 2004. 38 The Summons bears the Emblem of the Islamic Republic of Iran. It required the appellant to appear at the Shahid Beheshti Judiciary Complex in Tehran at 12.30 pm on 3 February 2003. Against the words, 'The cause to appear' in the Summons are the words 'As for the time appointed by the Justice Administration … please appear for the investigation over the subject of the said dossier in this court'. The translator recorded that some parts of the original are illegible. There are several blanks in the document. The date of issue is uncertain. The appellant testifies in his affidavit that he has no knowledge of any 'dossier'. 39 The Summons was clearly in existence prior to the commencement of the proceeding before the RRT and, of course, the proceeding before the primary judge. 40 The second document, the Notice, bears the same national Emblem. It required the appellant to appear at the same place on 1 June 2003, which was after the RRT's decision, but prior to the hearing before his Honour on 27 August 2003. Against the words 'The cause to appear' are the words 'Concerning the previous summons to this branch, you are noticed to appear within five days and otherwise it shall lead to your arrest'. Again, there are several blanks in the document. The date of issue is, apparently, 23 May 2003. That date was after the hearing before the RRT but before its decision. 41 In summary, both documents were in existence prior to the hearing before the primary judge; the Summons was in existence prior to the hearing before the RRT; and the Notice came into existence after that hearing but prior to the RRT's decision; and the existence of both documents was unknown to the appellant, without fault on his part, until January 2004. 42 In order for an appellate court to receive further evidence, two conditions must be satisfied: first, the party seeking to adduce the evidence must show that it could not, with reasonable diligence, have been adduced at the trial; and, secondly, the evidence must be such that very probably the result would have been different: see, for example, Orr v Holmes (1948) 76 CLR 632 at 635-636 per Latham CJ. The second condition has been variously expressed in the cases, but the point made in all of them is that it is not enough that the new evidence was relevant and otherwise admissible, and may have affected the result. Language referring to, at the lowest, 'probability', and at the highest, 'certainty', of a different result, has been used: cf R v Copestake; Ex parte Wilkinson [1927] 1 KB 468 at 477 ('of such importance as very probably to influence the decision' and 'of such weight as, if believed, would probably have an important influence on the result'); Orr v Holmes at 636 ('high degree of probability that the admission of the new evidence would result in a different verdict'); Florance v Andrew (1985) 58 ALR 377 at 381 ('such a different complexion on the case that a reversal of the former result ought certainly to ensue'); Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 at 367-368 ((as agreed by the parties) 'almost certain that, … , an opposite result would have been reached by the primary judge'). 43 As noted earlier, for the purposes only of the appellant's motion, the Minister relies on only one argument: that the further evidence would have been irrelevant, and therefore inadmissible, if the appellant had sought to adduce it before the primary judge. 44 The appellant submits that the documents are 'relevant' because, by reason of the RRT's failure to take them into account, the appellant was denied natural justice. The appellant accepts, of course, that it was impossible in fact for the RRT (or the primary judge) to take the documents into account, just as it was impossible for the appellant to have drawn their existence to their attention: both documents came to the knowledge of the appellant 'out of the blue' in late January 2004. 45 The appellant relies on a passage from the dissenting judgment of Lord Denning MR in R v West Sussex Quarter Sessions, Ex parte Albert and Maud Johnson Trust Ltd [1974] QB 24 ('West Sussex'). In West Sussex, the West Sussex County Council, in performance of it duties under the National Parks and Access to the Countryside Act 1949 (UK), prepared and published a provisional map showing a public footpath over privately owned land. The landowners exercised their right under s 31 of that Act for a declaration that the path was not public footpath. On the evidence before it, Quarter Sessions found that it was, and therefore refused the declaration. Under the Act mentioned, that determination was final, and the only right of appeal was by way of case stated on a point of law for the opinion of the High Court. 46 The landowners later discovered fresh evidence and applied to the Divisional Court of the Queen's Bench Division for an order of certiorari to quash the decision of Quarter Sessions, and an order granting a new trial. The Divisional Court refused the application on the ground that, in the absence of fraud or perjury, certiorari would not issue to quash the decision of an inferior tribunal merely because fresh evidence had come to light after the hearing. 47 The landowners' appeal to the Court of Appeal was dismissed. All three members of the Court of Appeal held that the fresh evidence did not satisfy the criteria of admissibility, because it could, with reasonable diligence, have been obtained for use at the trial, and because it was, in any event, unlikely to have led Quarter Sessions to a different conclusion. 48 In obiter dicta, however, all three members of the Court of Appeal expressed opinions as to whether the discovery of fresh evidence was, in itself, a ground on which certiorari could be granted. The majority, Orr and Lawton LJJ, thought it was not, while Lord Denning MR thought it was. Orr LJ said (at 39): 'The limits of certiorari are, in my judgment, well established and do not extend beyond defects or irregularities at the trial. I need not enumerate all the headings under which the relief has hitherto been granted, but they all fall within those limits, and they include fraud because fraud is recognised as vitiating proceedings. In my judgment, however, it cannot be said that for this purpose there is a defect or irregularity in proceedings because the tribunal, if other evidence had been adduced, might have come to a different conclusion. To extend the ambit of certiorari to such cases would, it seems to me, be a radical transformation of its character.' (our emphasis) After reviewing the authorities, Lawton LJ stated (at 42): 'How should this general law be applied to the facts of this case? Quarter sessions were acting within their jurisdiction: there was nothing irregular about either the conduct of the magistrates or of the parties; there were no irregularities in procedure. In my judgment this case falls outside the limits set for certiorari by the judgment in Reg v Bolton [(1841) 1 QB 66]. Certiorari is not concerned with miscarriage of justice arising on the evidence but with jurisdiction and the regularity of the proceedings: see Colonial Bank of Australasia v Willan (1874) LR 5 PC 417, 444. The essence of the landowners' case is that there may have been a miscarriage of justice upon the evidence because not enough was put before quarter sessions. If the new evidence had been available, it would have merely produced a conflict of evidence with which the court on certiorari is not concerned.' (our emphasis) Disagreeing with their Lordships, Lord Denning MR said (at 36), in a passage relied on by the appellant: 'Hitherto the cases have only gone to the extent of allowing certiorari where the decision of the inferior court is vitiated by fraud or perjury. But I see no reason why the remedy should be confined to those two grounds. A decision of a question of fact may be vitiated by mistake just as much as by fraud. A witness may say something which is entirely wrong - fraudulently knowing it is false - or incorrectly believing it to be true. If the court believes him and bases its decision on it, then on discovering the untruth, the decision should be set aside - without embarking on an inquiry whether he was fraudulent or not. In such cases the fresh evidence is admitted by affidavit to prove the fraud or mistake. It is proved by something that has happened since the trial. Those cases are in my opinion only instances of the wide principle on which fresh evidence is admitted: and that is when it is necessary to do justice between the parties. It is the same principle as has been applied for centuries in regard to decisions of the High Court. There is no reason why it should not be applied to decisions of the kind here in question - decisions which will be conclusive for ever in determining the existence of a public right. I would, therefore, extend the remedy of certiorari to cases where fresh evidence is discovered which could not have been found with due diligence before the trial, where it is apparently credible and would have an important influence on the result.' (our emphasis) 49 Counsel for the appellant has drawn our attention to Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 ('Al-Mehdawi') in which the conflicting views in West Sussex were noted. Lord Bridge of Harwich, with whom the other members of the House agreed, remarked only that it was not necessary to express any concluded opinion as to which view was correct, the matter not having been argued before the House. 50 In Australia, in Pullicino v Harness Racing Victoria [2002] VSC 346, Smith J cited both West Sussex and Al-Mehdawi as authority for the proposition that 'mere fresh evidence is insufficient to cause certiorari to lie' (at [48]), but it is only the obiter dicta of the majority in West Sussex that can be regarded as providing support for the proposition. 51 We agree with the majority in West Sussex and would not extend the remedy of certiorari as proposed by Lord Denning MR in that case. 52 It is perhaps unwise to attempt to define exhaustively the circumstances in which certiorari will lie. We refrain from making the attempt. Consistently with authority, however, it can be said that certiorari will lie where there has been a failure to give a fair trial attributable to conduct, which is in some sense irregular, of: · the court, tribunal or other decision-maker; or · the other party or those associated with the other party; or · a witness. Examples usually given of the second and third class of case are fraud, perjury and collusion, but they may not be exhaustive; cf R v Bolton; Ex parte Scally [1991] 2 WLR 239. 53 In the present case the RRT did not itself fail to give a fair hearing. The unavailability of the additional evidence to the appellant or to the RRT was in no way attributable to irregular conduct of the Minister or those associated with the Minister. Nor is the case one of perjury or other misconduct of a witness. 54 In our opinion, certiorari does not lie where no more appears than that 'fresh evidence is discovered which could not have been found with due diligence before the trial, where it is apparently credible and would have an important influence on the result' (West Sussex at 36 per Lord Denning MR). It follows that the fresh evidence here (the existence of the Summons and of the Notice), is irrelevant to any ground on which certiorari could properly have been granted by his Honour in respect of the decision of the RRT, and that if the appellant had sought to lead that evidence before his Honour, his Honour would have been bound to reject it. 55 For the above reasons, it is not shown that the RRT failed to observe the requirements of natural justice in relation to the appellant. 56 We add the following observations. 57 Generally speaking, in ordinary litigation, if the two conditions mentioned at [42] are satisfied, the further evidence will be received on appeal, because it is thought to be unjust that the primary decision should be allowed to stand unchallenged. 58 But the Act creates a special régime in relation to decisions of the RRT. The RRT's decision here was a privative clause decision: see s 474 of the Act. While in the migration zone, the present appellant may not make a further application for a protection visa in which the significance of the additional evidence can be assessed by the RRT, unless the Minister personally determines otherwise on public interest grounds - and the Minister does not have a duty to consider whether so to determine: see s 48A and s 48B(1), (2) and (6) of the Act. Alternatively, under s 417 of the Act, the Minister may, on public interest grounds, substitute for the RRT's decision another decision more favourable to the appellant. Again, however, the power may be exercised only by the Minister personally, and the Minister does not have a duty to consider whether to exercise it: s 417(3) and (7).

CONCLUSION 59 The motion brought by notice of motion filed on 13 February 2004 and the substantive appeal should both be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

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