NATL v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 The appellant is a national of Iran. He applied for a protection visa on 21 May 1998. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs refused the application on 8 January 1999. The decision was affirmed by the Refugee Review Tribunal. That decision was set aside in the Federal Court of Australia and the matter remitted to the Tribunal. The matter was heard again in the Tribunal on 16 February 2001. The Tribunal further affirmed the decision not to grant a protection visa by a decision dated 24 July 2002 which was handed down on 6 August 2002. 2 The appellant instituted proceedings under s 39B of the Judiciary Act 1903 (Cth) for review of the second decision of the Refugee Review Tribunal. The application was heard by Wilcox J who dismissed it on 8 November 2002. The appellant has appealed to the Full Court. 3 The appellant claims to have a "well founded fear of being persecuted" which satisfies the requirements of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The appellant's claims are based on his alleged political opinion, his religion and his race. He claims to be at risk in connection with his political opinions because of his association with an uncle who had been held in prison for twelve years. So far as religion is concerned he asserts that he associated with Christian friends and had attended a Christian church in Iran. His claim to risk of persecution because of race is associated with his assertion that he is an Azari and that Azaris are persecuted in Iran. He also claims to have converted to Christianity and joined a church in Australia. 4 The Refugee Review Tribunal examined all of these claims in great detail. The reasons for decision of the Tribunal cover some 49 pages. The Tribunal rejected all of the appellant's claims. The Tribunal did not believe the appellant and held that he had fabricated the claims. It is apparent that the Tribunal's conclusion was based primarily upon its assessment of the evidence of the appellant as well as upon a review of a great deal of other evidence. No single piece of evidence assumed special significance in the deliberations of the Tribunal. 5 The application to this Court, as appears from the amended application dated 28 October 2002, was based on two grounds. The first was that the Tribunal's decision was vitiated by jurisdictional error because it failed to comply with the requirements of s 424A of the Migration Act 1958 (Cth). The second was that the Tribunal did not accord the appellant natural justice and procedural fairness. The particulars given of both grounds were the same and were as follows: "Particulars a) The Tribunal sent the applicant a letter (under s 424A) dated 15 February 2002. With regard to the adverse information in this letter the Tribunal:- 1) did not provide the name of the person referred to as "the "proprietor of Thunderlegs Martial Arts centre". 2) did not state at which of the gymnasiums (Seven Hills or Guilford), or whether it was at both gymnasiums that the applicant:- i) was alleged to have trained at for almost two years. ii) "organised other Muslims in the gymnasium to say prayers" 3) did not state which gymnasium it was referring to when the Tribunal said that it was alleged the applicant was "asked to leave the gymnasium forever". 4) did not state to whom it was known that the applicant had "harassed Christian members of the gymnasium who were of middle eastern background to become Muslims". 5) did not tell the applicant who it was the Tribunal had contacted on 10 June 1999 other than to say that the person was the "proprietor of the Thunderlegs Martial Arts centre". 6) did not tell the applicant whom it was the Tribunal had contacted on 5 February 2001 other than to say that the person was the "proprietor of the Thunderlegs Martial Arts centre". b) The Tribunal did not provide the applicant with the name or other details of the "Iranian community organisation" who had provided "evidence" that was adverse to the applicant (see page 187 of the Relevant Documents)." 6 In an affidavit in support of the application the appellant explained the matters giving rise to his claim as follows: "5. The Tribunal in its Reasons for Decision (dated 24 July 2002 and handed down on 6 August 2002) stated that the adverse information put to me included "evidence before the Tribunal suggesting that an Iranian community organisation did not support (my) claims" (see page 187 of the Relevant Documents) I was never told who this organisation was and was never provided with any information that would allow me to identify precisely what was said about me and who said it, and thereby enable me to meet this adverse information. 6. On or about 16 February 2001 The Refugee Review Tribunal ("the Tribunal") provided me with a letter dated 15 February 2001 under s424 of the Migration Act 1903 ("the s424 letter"), a copy of which is provide at page 134 of the Relevant Documents." 7 The reference to the Tribunal's reasons for decision at "page 187 of the Relevant Documents" appears to be a reference to paragraph 91 of the reasons of the Tribunal which is as follows: "The applicant was informed that there was evidence before the Tribunal suggesting that an Iranian community organisation did not support his claims. The applicant was informed that members of the Iranian community, whose names are set out below, had signed a letter to the Tribunal stating that he was a strong believer in Islam and that he was in no danger in Iran." 8 Although the reasons refer to the names of the relevant members of the Iranian community being "set out below" the context of the decision shows that they were in fact set out above, in paragraph 44 of the decision, which is as follows: "44. A letter signed by a number of Iranian Australians was received by the Tribunal on 29 May 1999. The signatories stated that the applicant wanted to obtain refugee status in Australia through lies and deception, that he was a strong believer in Islam regardless he claimed he had converted to Christianity and would be killed if he returned to Iran, that his life was safe in Iran and he did not have any problems that might put his life in danger if he goes back to Iran. They accused the applicant of misusing the humanitarian processes in Australia to obtain residency. The letter was signed by Jamal Ghoreanisisan, B. Albertiasl, R. Yousefi and Rasul Roll." 9 The letter dated 15 February 2001 is as follows: "Refugee Review Tribunal ... 18 February 2001 Dear ... RE: APPLICATION FOR REVIEW OF DECISION TO REFUSE PROTECTION VISA (REFUGEE STATUS) The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection Visa. The Tribunal has received information that you have not genuinely converted from Islam to the Christian faith. The proprietor of Thunderlegs Martial Arts centre has indicated that you attended and trained at the Thunderlegs gymnasium in Sevenhills and Guildford for a period of almost two years up until May 1999. During that time you were know to be of the Muslim faith, as you, along with other Muslims at the gymnasium, practiced your religion before and after classes on many occasions. You were known to the proprietor to be of an aggressive manner and you were asked to leave the gymnasium forever because you were incapable of changing your ways despite the discipline of martial arts. You were also known to have harassed Christian members of the gymnasium who were of middle eastern background to become Muslims. You organised other Muslims in the gymnasium to say prayers.