PRACTICE AND PROCEDURE - migration - whether primary judge erred in exercising his discretion to refuse applicant's request for adjournment - consideration of the limits of review available on appeal.

Migration Act 1958

Chan Yee Kin v Minister for Immigration and Multicultural Affairs (1989)

160 CLR 379 - cited

House v R [1936] HCA 40; (1936) 55 CLR 499 - cited

MOHAMMAD SHAHI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

2. The appellant pay the respondent's costs of and incidental to the appeal.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

1 This is an appeal from an order of a single judge of this Court, Finn J, on 9 December 1999 dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal) to refuse the appellant a Protection Visa. The appellant, Mohammad Shahi, is of Iranian nationality. He arrived at Brisbane Airport on 26 April 1999, having departed Iran from Shiraz Airport. He arrived without a passport and was, therefore, interviewed by an immigration inspector at Brisbane Airport.

2 The essence of the appellant's claim for refugee status is contained in his response to questions 36 - 40 in Part C of his visa application. His stated fear was that the Iranian authorities would kill him if he returned to Iran, because they believed he had contacts with adherents to the Baha'i religion, that he had engaged in activities against the Islamic revolution and that he had converted to Baha'i.

3 The delegate of the Minister refused Mr Shahi's application and he then appealed to the Tribunal. At that hearing he initially had representation, but during the course of the hearing the firm of solicitors acting for him ceased so to act. After a period to allow the appellant to produce further documentary evidence, and while he remained unrepresented, the Tribunal held a further hearing. Mr Shahi on this appeal argues that he was disadvantaged by the absence of legal representation in the latter stages of the hearing before the Tribunal, and by the primary judge's refusal of his request for an adjournment so that he could obtain legal representation in this Court.

4 The Tribunal rejected his application for review and affirmed the decision of the Minister. When the appellant lodged an application for an order of review in the Federal Court he was unrepresented, and he remains so before this Full Court today. The application, in the original jurisdiction of this court, did not state any ground of review, indicating merely that "details will be sent later". No such details were sent.

5 On 9 December 1999 before the learned primary judge, Mr Shahi sought and was refused an adjournment of the matter. In his reasons, Finn J said in this regard:

"It did not seem to me in the circumstances that appropriate reasons had been advanced which would justify an adjournment nor that the refusal of an adjournment would involve a denial of procedural fairness or an injustice to him. In so deciding I had regard generally to the statement of principles relating to the grant of an adjournment referred by the Full Court of this Court in Scott v Handley [1999] FCA 404. I equally am conscious of the obligation imposed on trial judges when dealing with unrepresented litigants who are unable satisfactorily to present their own case. I refer in particular to the observations of the High Court of Australia in Neil v Knott [1994] HCA 23; (1994) 121 ALR 148 at 150."

6 As to the application before him, the learned primary judge indicated that Mr Shahi was initially seeking "what seemed to be no more than a merits review". His Honour noted that Mr Shahi, conscious of the difficulty he faced with an adverse credibility finding against him by the Tribunal, later tried to have adduced fresh evidence to show that he was now supported by the Baha'i Association. This evidence, the trial judge said, was clearly inadmissible; he thus declined to receive it.

7 The Tribunal had made very strong findings against the present appellant, having said in its reasons:

"Having regard to the view I have formed of the Applicant's credibility, I do not accept that he has converted to the Baha'i faith `in his heart' as he said at the hearings before me. As set out above, the Applicant only made this claim after the rejection of his application by the delegate of the Minister and I consider that he has made this claim purely out of self-interest and in an attempt to improve the chances of success of his application for a protection visa. I do not accept that the Applicant has converted to the Baha'i faith nor that he has any genuine intention of converting to the Baha'i faith at any time in the future. It is therefore unnecessary for me to consider the submissions of the Applicant's representatives regarding the treatment of apostates in Iran."

8 That last sentence, it seems to me, is a reference to some of the material which was before the Tribunal dealing with the possibility of torture or other cruel, inhuman or degrading treatment or punishment of persons not strictly adhering to Islam, including persons of the Baha'i faith.

9 The conclusion of the primary judge as to the findings which the Tribunal made appears from this sentence in his reasons for judgment:

"What is clear is that the findings of fact that were made were reasonably open on the material that was before the RRT."

10 That finding was fatal to the application before the learned primary judge, but it ought to be understood that his Honour then was not saying, as this Court now does not say, that the finding made by the Tribunal was correct. The primary judge had noted:

"It may be the case that some might consider the finding made by the Tribunal somewhat harsh in the circumstances and that a somewhat more sympathetic approach could have been taken to the inconsistencies that were revealed in his story. I make no comment upon that."

11 His Honour's comments highlight that the Federal Court, both at first instance and on appeal, can only intervene upon the establishment of legal error. A factual finding only amounts to an error of law if it is not reasonably open. The learned primary judge, having decided that the findings of fact made by the Tribunal were reasonably open, concluded:

"... I can discern no reviewable error in the Tribunal's reasoning and in the circumstances the order of the Court is that the application must be dismissed."

12 Mr Shahi filed a Notice of Appeal on 30 December 1999, asserting three grounds of appeal from Finn J's judgment: first, that his Honour erred in finding that the Tribunal had not made a reviewable error in its reasoning; second, that his Honour erred in finding that the adverse finding on credibility was open to the Tribunal; and third, that his Honour erred in not allowing an adjournment so that the appellant, who was unrepresented, could obtain a copy of all material before the Tribunal and file it in court prior to any hearing (required because the respondent failed to include all relevant information in the book of "relevant documents").

13 In oral submissions made to this Court through the services of an interpreter, Mr Shahi asserted that the decision at first instance was tainted by the denial to him of the right to a solicitor. He secondly submitted with candour that, while he couldn't identify an error of law in the Tribunal's reasoning, its conclusion was mistaken. In particular, he contended that the circumstance that he had associated with friends who were Baha'i in the Detention Centre brought him within the "real chance" test, as enunciated by the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. Thirdly, he submitted that he sought a further hearing before the Tribunal, and in particular was anxious that further material not available to him at the time of the Tribunal's hearing ought to be considered on the question of his religious belief and the likely implication of that religious belief should he be refouled to Iran.

14 In respect of the first two grounds of appeal in the notice of appeal, nothing has been submitted to suggest any error of law on the part of the primary judge.

15 In relation to the third ground of appeal, concerning refusal of an adjournment by the primary judge, the decision to refuse an adjournment is discretionary. Thus, the appellant has to demonstrate an error of the kind discussed in House v R [1936] HCA 40; (1936) 55 CLR 499 and he has failed so to do. Finn J was aware that Mr Shahi was unrepresented, and of the circumstances of that lack of representation, and took those matters properly into account.

16 It seems also to be the case that the material that was before the Tribunal was before the primary judge. What was perhaps not before the primary judge, however, was material that the Tribunal did not have but which Barlow and Company, Mr Shahi's former solicitor, may have had; as well as material which came into existence after the hearing before the Tribunal, including that which the primary judge referred to as tending to show that he was now supported by the Baha'i Association, which evidence the trial judge refused to admit.

17 In those circumstances, it seems to me that no legal error has been demonstrated in the exercise of the trial judge's discretion to refuse an adjournment, nor in his Honour's conclusion that the findings of fact, including the finding as to credibility, were reasonably open on the material before the Tribunal. The position legally is that no error has been demonstrated in the primary judge's reasons for judgment, and the appeal should therefore be dismissed with costs.

18 Before leaving the matter, however, I should note - not by way of giving false encouragement, but simply to explain the nature of proceedings in the Federal Court at first instance and on appeal - that a court hearing an appeal can generally do so only on the basis of material before the decision maker appealed from. That is, when considering whether there is any legal error demonstrated in relation to that material and how it was dealt with, this Full Court can only be concerned with the material which was before the Tribunal and before the primary judge. In respect of any fresh material available to the appellant, it may be that, pursuant to s 48B of the Migration Act 1958 (the Act), that material forms the basis for an application to the Minister. Section 48B of the Act provides a special power to be exercised by the Minister personally and, therefore, that avenue of potential relief is not at all relevant to the disposition of this appeal.

19 Nevertheless, if it be the case that there is further evidence which is highly probative of the appellant's claim to be a refugee, it may be that a request for Ministerial consideration, under s 48B of the Act, is open. I do not want to give the appellant any false hopes in that respect, but simply note that he is not totally precluded from having any fresh material considered.

20 For the reasons which I have set out above, the appeal should be dismissed with costs.

21 I agree with the conclusion proposed by the presiding judge and with his reasons. I would merely, in fairness to the appellant, wish to record a couple of matters: the first is that the appellant presented his case here with notable candour and economy. It appears that the third ground in the notice of appeal was drafted by someone assisting the appellant who misunderstood the nature of the appellant's grievance as to the question of adjournment.

22 Here the appellant explained that he felt aggrieved that he had not had the services of a solicitor to finality in the proceedings before the Tribunal. It appears that he had originally engaged a firm of solicitors which, on account of the bankruptcy of one or more of the principals of that firm, ceased to trade and so he was left without a solicitor. He said he had tried to arrange another solicitor once he had received a communication from the Refugee Review Tribunal indicating that there were some outstanding questions as to which it wished to offer the appellant a chance to say more.

23 The new solicitor indicated that he would only act if that involved no more than answering questions which the Tribunal might state in writing. The appellant understands that the new solicitor communicated with the Tribunal on more than one occasion, asking that the Tribunal might indicate what the questions were so that a written response might be made. According to the appellant's understanding of the matter, there was never any response to those communications. However, exhibiting the candour to which I have referred, the appellant agreed that the Tribunal had done nothing to prevent the solicitor appearing with the appellant at the second hearing before the Tribunal. So much would, even if the notice of appeal were amended to allow a discussion of the matter, dispose of the proceedings adversely to the appellant given the limited grounds of legal review that are available here.

24 Insofar as the Minister at any time may be disposed to apply a discretion to this matter, it might be fair to record that it appears that the appellant did wish to have legal representation and that through no fault of his own, steps that he had put in train to have that occur, were not carried through to fruition. It may be that his case could have been better put by a lawyer than he could put it himself.

25 I agree with the orders proposed by the presiding judge. I also add some comments concerning the factors relating to the hearing that appear to have been of concern to the appellant. The appellant was represented at the first hearing before the Tribunal on 22 July 1999. Prior to that time, a number of submissions had been made on his behalf by his then solicitors.

26 At the end of the first hearing the Tribunal gave the appellant's representative until 5 August 1999 to try to obtain the summons to which reference had been made in the first hearing and to produce documentation from the Baha'i organisation at Fairfield, which he said he was expecting and any other material which he might wish to produce to the Tribunal.

27 On 28 July 1999 the appellant's representatives produced the summons and the identification booklet to which reference had been made. They said they had taken copies for translation. On 9 August the solicitors representing the appellant informed the Tribunal that the translations would be available on 11 or 12 August. However, in a further letter dated 13 August the solicitors indicated that they would no longer be acting because of their insolvency.

28 The solicitors indicated that the translations were being prepared by the Ethnic Affairs Commission and that they had asked that they be forwarded directly to the Tribunal. Those translations were never received. Because of the outstanding matters the Tribunal decided to hold a second hearing which was held on 23 September 1999. At the beginning of that hearing the Tribunal noted that certain matters were still outstanding and that as the appellant no longer had representation, the Tribunal considered it appropriate to hold a further hearing.

29 It was noted at the conclusion of the previous hearing that the representative had been given time to try to obtain the summons that the appellant said had been issued to him and to produce the documentation of the Baha'i organisation. The Tribunal noted that the representative subsequently produced the summons and the applicant's identification booklet and the translations would be coming but that the Tribunal had not yet received those translations.

30 The Tribunal, however, noted that the two documents in question had been translated by the interpreter at the departmental interview, and that, subject to any objection the appellant might have, the Tribunal proposed to rely on those translations. The appellant said that the interpreter had sight translated the documents at the departmental interview and that he did not know the English used. The Tribunal proposed to go through the two documents with the appellant so that a check could be made as to any problems with the translation.

31 While it is clearly unfortunate that the representation of the appellant was terminated in the circumstances in which it was, the Tribunal considered that he had been given a fair opportunity to have his case put forward by his representatives prior to their insolvency. That is the view that appears to have been taken by Finn J. I agree with Finn J. In the circumstances I do not wish to add anything to what has been said by my brothers.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Madgwick and Emmett