Tahavoori v Minister for Immigration & Multicultural Affairs

THE TRIBUNAL'S DECISION 9 Having regard to the contradictions, which were set out in some detail in the reasons, and the confusion in the applicant's evidence, the Tribunal did not consider that he could be accepted as a credible witness. In particular the Tribunal did not accept that the applicant had witnessed thefts, corruption or money laundering while working as the General's driver. The Tribunal did not consider that the fact that the applicant may be punished if he returns to Iran for having deserted the Sepah, for having slept with General's daughter or for having left Iran illegally would bring him within the definition of a refugee within the meaning of Article 1 of the 1951 Convention Relating to the Status of Refugees ("the Convention") as amended by the Refugees Protocol. 10 The Tribunal considered that desertion, sexual relations between unmarried Muslims and illegal departure from Iran are all breaches of criminal laws that apply generally in Iran. The Tribunal referred to what it described as a well-established principle, that the enforcement of a law of general application is not, without more, persecution for a Convention reason. In order to come within the terms of the Convention the prosecution would have to be selective on one of the Convention grounds or, for example, a person would have to be punished more harshly for Convention reason than others convicted of the same offence. 11 The Tribunal did not accept that there was a real chance that the applicant would be treated differently from other offenders for a Convention reason by reason of the cumulative effect of the offences he has committed. The evidence available to the Tribunal suggested to the Tribunal that the applicant may receive a sentence of imprisonment rather than merely a fine for having departed Iran illegally if the view is taken that his illegal exit was prompted by a wish to evade justice. However, the Tribunal considered there was nothing in the evidence before it to indicate that the applicant would be imputed with a political opinion by reason of his illegal departure nor by reason of his previous conviction for drinking and for being with an unmarried woman. 12 The Tribunal referred to Australian Department of Foreign Affairs and Trade Information that even individuals who have had repeated brushes with authorities over 'morals' infringements, such as alcohol possession, could not be considered as having an imputed political profile. The Tribunal did not accept that as the General's driver, the applicant had access to secrets or sensitive information. Having regard to the view that the Tribunal formed of the applicant's credibility, it did not accept his evidence at the hearing that, as the General's driver, he visited very important places and therefore had access to information about very sensitive areas. 13 The Tribunal did not accept that there was a real chance that if the applicant returns to Iran he would be accused of espionage, taking photographs of barracks, making sketches of places he visited or having divulged information to authorities overseas as he claimed. The Tribunal did not consider that there was a real chance that the applicant would be treated differently, for a Convention reason, from any other deserter returning to Iran. 14 The Tribunal referred to the claim in the applicant's handwritten letter of 31 January 2001 that anyone who came into conflict with the government in Iran was labelled 'political', was arrested and tortured. The Tribunal did not accept that the fact that the applicant had committed offences against the laws of Iran would lead to him being imputed with a political opinion opposed to the government of Iran. The fact that Iran is an Islamic state and that certain of its laws reflect Islamic morality does not in itself, on the Tribunal's view, mean that the enforcement of such laws amounts to persecution by reason of political opinion or religion - see Lama v Minister for Immigration & Multicultural Affairs [1999] FCA 1620 at paragraph [13]. 15 The Tribunal was not satisfied that the applicant has a well-founded fear of being persecuted for a Convention reason if he returns to Iran. It followed, in the Tribunal's opinion, that the applicant is not a person to whom Australia has protection obligations under the Convention. Accordingly, the applicant did not satisfy the criteria set out in s 36(2) of the Migration Act 1958 (Cth) ("the Act") for the grant of a protection visa.

GROUNDS OF REVIEW 16 In his application to the Court as amended without objection, the applicant relies in substance on three separate grounds.

STANDARD OF INTERPRETATION 17 The first is that the interpretation of the applicant's statements into the English language at the hearing before the Tribunal was of such poor quality of English that the applicant was deprived of a proper opportunity of presenting his case to the Tribunal and was deprived of a hearing before the Tribunal. That ground was based principally upon s 476(1)(a) of the Act, which provides that it is a ground of review that procedures that were required by the Act or the Regulations to be observed in connection with the making of the decision were not observed. 18 The applicant pointed to s 425(1) of the Act which provides as follows: "The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." Section 427(7) provides: "If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter." The applicant contended that the transcript of the proceeding before the Tribunal indicated that the English language ability of the interpreter appeared to be limited. No claim was made that there was any specific error of interpretation which caused any obvious misunderstandings. However, it was said that the quality of the English used by the interpreter was such that the ability of the applicant to put his case persuasively to the Tribunal was inevitably diminished. 19 An important issue in the proceeding was the applicant's credibility and it was said that the lack of a competent interpreter was most important in that area. Absent an interpreter, the Tribunal would be unable to afford an effective opportunity to a non‑English‑speaking applicant to give evidence. It might be said therefore that the Tribunal's failure to provide an interpreter in such circumstances constitutes a failure to observe the requirements of s 425 - see Perera v Minister for Immigration & Multicultural Affairs [1999] FCA 507 ("Perera") at paragraph [21]. 20 There are circumstances in which a real question may arise as to whether an applicant is given a fair opportunity of giving evidence and presenting arguments relating to the issues arising in the decision under review. Doubts would arise where evidence given through an interpreter is repeatedly unresponsive to the questions asked by the Tribunal, is incoherent and inexplicably inconsistent with other evidence and where exchanges between the interpreter and the Tribunal demonstrate confusion on the interpreter's part as to the subject and direction of the Tribunal's inquiry - see Perera at paragraph [42]. 21 However, the interpretation in the present case does not, in my view, fall into that category. I was taken to the following part of the transcription of the hearing by way of an example of the standard of interpretation: INTERPRETER: … "If somebody who has a conscience has to close his eyes and get blind not to see it and not to hear anything, it wouldn't happen there, you have to actually keep quiet about it, that's not possible to in my case. I could not see that you know, because straight out, I did not see that they are committing (… unclear). I could not keep quiet about it. I could not accept somebody, an uneducated person, who has been in the war or in the battle and who was unemployed, unemployable; now he is back and he is a Brigadier General, I could not tolerate, I could not put up with the situation, and the mother's family, who has lost their loved ones, to be treated this way, I could not keep silent. I say, can you tell the Judge, Mr. Judge I do not want to portray a picture that I am a saint or that I am the prophet's son. I am, I did not commit anything, which is bad (defendable?), which has been taken out of prohibited money, for religion… I have something in my mind you know to take that opportunity, come up to go, we will see I start off with the pressure where about, but still at that point it was that I did not make up my mind to try and leave. My family wanted me to stay back and stay in the country, but I could not really tolerate that. You see until that matter happened I was not very decisive about leaving for overseas. I was waiting for an opportunity on this part and this happened, I made up my own mind. That was not a much trouble, it was a matter, which I saw in my own eyes, the tax and the money laundering in the Sepah Pasdaran. You see well at the same, when did I do what I could to the girl's mother and the girl's mom made a comment about me that I am not a good person, but then her daughter actually in view of the fact that I have spoken about her father. About his activities in the Sepah." It was suggested that the English of the interpreter was poorly expressed although, as I have said, no claim was made that there were specific errors of interpretation. 22 One difficulty with the transcription is that the transcriber was unable to understand some of the words in the tape of the hearing. It is a fair comment that the interpreter, as recorded in the transcription, speaks in a disjointed manner and that the language does not flow. That however, is not, in my view, sufficient criticism to constitute a failure to satisfy the requirements of s 425(1). There was no evidence as to the nature of the language used by the applicant in his native tongue. I do not consider that there has been a failure to observe the requirements of s 425 of the Act. Accordingly, I do not consider that this ground has been made out.

FAILURE TO LISTEN TO TAPE 23 The second ground of review is that the Tribunal failed to listen to the tape of the applicant's initial interview in Australia as requested by the applicant or to have that tape re-interpreted as requested by the applicant. It was said that the tape would have shown that the applicant had expressed concerns with regard to the behaviour of members of Sepah. Instead the Tribunal relied solely on the notes made at such interview to make findings against the credibility of the applicant. 24 That ground is based on ss 476(1)(a), (b) and (e) of the Migration Act. Sections 476(1)(b) and (e) provide the following grounds: "(b) that the person who purports to make the decision did not have jurisdiction to make the decision. ……………………… (e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears in the record of the decision." 25 It is difficult to see how s 476(1)(a) is applicable. Counsel for the applicant referred to s 427 of the Act as a possible procedure required by the Act to be observed. However, the terms of s 427 are permissive rather than directive. The Tribunal is entitled to inform itself in such ways as it sees fit. I do not consider that failure to accede to the applicant's request constituted a failure to observe a procedure required by the Act to be observed. 26 Insofar as the ground is based on paragraphs (b) and (e), reliance was placed on the decision of the High Court in the Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. The various provisions of s 476 enumerate the grounds in which judicial review of Tribunal decisions may be sought. The section does so in a way that at least at first sight allows more limited grounds than the grounds in which judicial review may ordinarily be sought. However, the fact that s 476(1)(a) is inapplicable does not mean that the Federal Court has no jurisdiction to deal with cases in which it is alleged that the Tribunal failed to make some relevant finding of fact, such a complaint will often amount to a complaint of error of law or of failure to take account of relevant considerations. 27 It might have been thought that s 476(1)(b) extended only to matters in which the Tribunal or the person who constituted the Tribunal was not properly authorised to make a decision because for example the Tribunal was not constituted in the proper way. However, as the High Court said in Yusuf's case: "As was said in Craig v South Australia, if an administrative tribunal …

'falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.'

'Jurisdictional error' can thus be seen to embrace a number of different kinds of error …. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. … [I]dentifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it.

[I]f the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it 'exceeds its authority or powers'. If that is so, the person who purported to make the decision 'did not have jurisdiction' to make the decision …, and the decision 'was not authorised' by the Act. Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. … If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that may well reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found." (at paragraphs [82] - [84])

See generally Yusuf's case at paragraphs [76] - [84]. 28 In order to consider this ground, as relied on by the applicant, it is necessary to examine in more detail the Tribunal's reasons for its decision. As I have already said, the Tribunal set out a number of matters in respect of which it concluded that the applicant's evidence at the hearing was confused and contradictory. 29 First, in the statement accompanying his original application he said that he had been a driver for a General in the Sepah but that most of the time he had driven with the General's family and that was how he met the General's daughter. However, at the hearing the applicant denied that he had said that he had mostly driven with the General's family. He said that he had only done this occasionally. 30 Secondly, in the statement accompanying his original application, the applicant said that one night at the end of April 1999, a friend had held a party and he had asked the General's daughter to come to the party with him. At the hearing, the applicant initially said that it had been a relative who had thrown the party and that the General's daughter had been at the party. Later, he said that it had been an acquaintance of his who had thrown the party and had invited him, but it had been the General's daughter who had insisted on going. 31 Thirdly, in the statement accompanying his application, the applicant said that he had asked his parents and the General's family to let him marry the General's daughter. At the hearing, however, he said it had been the General's daughter who had wanted to marry him. 32 Fourthly, in the statement accompanying his original application the applicant said that he and the General's daughter had decided to sleep together to put her parents in a position where they could not refuse to let them marry. However, at the hearing the applicant said that this had been the girl's idea and she had compelled him to do it. 33 Fifthly, in the original statement the applicant said that the General's daughter had told her parents that they had slept together. He had believed that his life was in danger and that he would be killed by her father's contacts. At the hearing, however, he said that he did not have a problem with the General and his family. He said that it was true that he had slept with the General's daughter but this was not his primary concern. They were not going to kill a person in Iran because he had slept with a girl. He said that that was not the main reason he had left Iran. 34 That leads to the sixth of the matters of inconsistency, which is principally concerned with this second ground. In the handwritten letter to the Tribunal of 31 January 2001 the applicant said that his statement was incomplete. He said that in the course of his work in the Sepah he had noticed some robberies which had been committed by high-ranking officers. He said that disclosing details of the robberies had created a dangerous situation for him. As a result, he had fled to Bandar Abbas and from there to Australia. 35 The Tribunal recorded in its reasons that when the applicant was asked why he had waited until a week before the hearing to mention that he claimed to have witnessed thefts from the Sepah, he said that he had mentioned these things. It was put to him that he had consistently said that his problems stemmed from the fact that he had slept with the General's daughter. The applicant said that his primary problem was with the Sepah. He said his relationship with the General's daughter was a personal matter and had nothing to do the Sepah. The applicant repeated that he would not be killed because of his relationship with the girl. He asserted that when he had first been interviewed he had said that his primary problem was the problem with the Sepah. The Tribunal considered that the applicant had decided to attempt to alter the basis of his application because he had realised that his previous claim did not bring him within the terms of the Convention definition of a refugee. 36 The Tribunal did not accept that the applicant claimed when he was initially interviewed after his arrival in Australia that he had witnessed thefts, corruption or money laundering in the Sepah. The Tribunal recorded in its reasons that the applicant had suggested that the Tribunal should have the tape of his entry interview translated to prove his claim. The Tribunal records that it put to the applicant, however, that there was no mention of those things in the record of the interview on the departmental file. What he was recorded as saying in that interview was consistent with his subsequent evidence and the statement accompanying his original application. 37 The Tribunal considered that, if the main reason for the applicant having left Iran was the fact that he had witnessed thefts, corruption and money laundering in the Sepah, he had ample opportunity to mention the fact. He did not do so either in the application accompanying his original application or in his interview with the delegate. The Tribunal considered, therefore, that that indicated that the claim was a fabrication. 38 During the hearing today, the applicant adduced evidence of his arrival interview. It is clear to me from the evidence that the applicant did not say that he had witnessed thefts, corruption or money laundering in the Sepah to the extent that he subsequently claimed that he had done so. The reference to the Sepah in the arrival interview is in the following terms: INTERVIEWER: "So given that you were caught drinking alcohol at a party with an unknown women [sic] who you subsequently had sex with, wouldn't that seem rather unusual behaviour for someone who had passed all of these, who had been accepted into this organisation? Given that you had done all those things, wouldn't that seem rather unusual for somebody who had been accepted into this organisation?" APPLICANT: "When I wanted to join Sepah I thought it was an organisation for the people, but when I started working with them I came to know that they are not and they are doing something against the people and that was why I was not believing in what I was doing. That was why I was not following those teachings." INTERVIEWER: "I suppose what I am saying is would they normally accept people into Sepah who drink alcohol?" APPLICANT: "No." 39 It was said on behalf of the applicant that the assertion that the Sepah was "doing something against the people" was capable of being interpreted as being at least consistent with the assertion that he had witnessed thefts, corruption or money laundering. It may be that there is no inconsistency between the two. However, it is clear that the applicant falsely claimed that he had referred to thefts, corruption or money laundering in his original interview. It may be that his recollection was faulty and that he genuinely believed that he had referred these matters. Be that as it may, it is clear, in my view, that, even if this material had been available to the Tribunal, it would not have resulted in any different conclusion. 40 The relevant part of the Tribunal's reasoning is as follows: "I consider that if the main reason for his having left Iran was the fact that he had witnessed thefts, corruption and money-laundering in the Sepah Pasdaran then he had ample opportunity to mention this. He did not do so and I consider this indicates that his claim is a fabrication." I read the Tribunal as emphasising "main reason". The fact that the applicant may have alluded to the Sepah "doing something against the people" and the fact that the comment is not inconsistent with thefts, corruption and money-laundering does not necessarily undermine the Tribunal's finding that the applicant's claim is a fabrication. I do not consider that the refusal of the Tribunal to examine further the tape of the entry interview involves ignoring relevant material within the principles laid down in Yusuf's case. Nor does it involve asking the wrong question, relying on irrelevant material or, on the basis of the evidence before me, making an erroneous finding or reaching a mistaken conclusion. I consider that this ground is not made out.

LAW OF GENERAL APPLICATION 41 The third ground is based on s 476(1)(e). The error is said to be that the Tribunal erred in determining that prosecution for:

would not be for a Convention reason unless the applicant was treated differently from other offenders charged with the same offence. In fact, so the applicant argues, if the punishment were meted out because the authorities considered that the applicant held views contrary to the state or had betrayed the state, such punishment would be for reasons of political opinion or imputed political opinion, even if all offenders were regarded and treated in the same way. 42 As I have indicated above, the Tribunal stated the following: "It is well established that the enforcement of a law of general application is not without more persecution for Convention reason. … In order to come within the terms of the Convention the prosecution would have to be selective on one of the Convention grounds or, for example, a person would have to punished more harshly for a Convention reason than others convicted of the same offence …."

In stating those matters the Tribunal relied on a decision of the High Court in Applicant A (1997) 190 CLR 225 at 244-5 and Z v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 51. 43 Counsel for the applicant contended that the correct approach in this area is that suggested by the High Court in Chen v Minister for Immigration & Multicultural Affairs (2000) 201 CLR 293 ("Chen") at paragraphs [25] - [28]: "As was pointed out in Applicant A, not every form of discriminatory or persecutory behaviour is covered by the Convention definition of 'refugee'. It covers only conduct undertaken for reasons specified in the Convention. And the question whether it is undertaken for a Convention reason cannot be entirely isolated from the question whether that conduct amounts to persecution. Moreover, the question whether particular discriminatory conduct is or is not persecution for one or other of the Convention reasons may necessitate different analysis depending on the particular reason assigned for that conduct. …

The position is somewhat more complex when persecution is said to be for reasons of membership of a particular social group or political opinion. There may be groups - for example, terrorist groups - which warrant different treatment to protect society. So, too, it may be necessary for the protection of society to treat persons who hold certain political views - for example, those who advocate violence or terrorism - differently from other members of society. …

… [T]he question whether the different treatment of persons of a particular race, religion, nationality or political persuasion or who are members of a particular social group constitutes persecution for that reason ultimately depends on whether that treatment is 'appropriate and adapted to achieving some legitimate object of the country [concerned]'. Moreover, it is [o]nly in exceptional cases … that a sanction aimed at persons for reasons of race, religion or nationality will be an appropriate means for achieving some legitimate government object and not amount to persecution." 44 I do not consider that the principles espoused in Chen assist the applicant in the present case. I am unable to discern any error involving an incorrect interpretation of the Convention in the Tribunal's approach. Nor do I find any incorrect application of the law to the facts as found by the Tribunal. There were claims by the applicant that he would be imputed with a political opinion by reason of his illegal departure. There were also suggestions, that because the General was a high-ranking official, he could have the applicant framed. The Tribunal did not accept that there was a real chance of that, but said that, even if it were to accept that there was such a real chance, it did not consider that it would occur for one of the five Convention reasons. 45 Having regard to the findings made by the Tribunal, it seems to me that a ground based on s 476(1)(e) is simply not made out. As I have said, the Tribunal did not accept that there was a real chance that the applicant would be treated differently from other offenders by reason of the cumulative effect of the offences he has committed. The Tribunal considered that there was nothing in the evidence to indicate that the applicant would be imputed with a political opinion by reason of his conviction for the offences of desertion from the Sepah, having slept with the General's daughter, and having left Iran illegally. In those circumstances I do not consider that this ground has been made out.

FALSE PROSECUTION 46 The amended grounds relied on by the applicant claimed the Tribunal erred in determining that prosecution and punishment resulting from the applicant being framed by the General for an offence where the reason to frame from the applicant having slept with the General's daughter could not be persecution for a Convention reason. It was said that if the applicant, by reason of being framed, were to be punished for holding views contrary to the Iranian state or for betraying the Iranian state, such punishment by the state would be for reasons of imputed political opinion, whatever the motives of the General might have been in arranging such prosecution and punishment. I need not consider the merits of such a contention, however, as there was simply no finding by the Tribunal that there was a real chance that the applicant would be framed.

FAILURE TO DETERMINE CORRECT QUESTION 47 The final ground relied on by the applicant is also related to the matters that I have just dealt with. This ground, however, is based on s 476(1)(b) on the basis the Tribunal failed to ask itself and determine the right question. It was said that based on the acceptance by the Tribunal that the applicant had deserted from Sepah and had subsequently left Iran illegally, the Tribunal was required to determine whether, on those facts, the applicant was at risk of persecution by reason of imputed or actual political opinion. Instead the Tribunal addressed the issue as if the applicant was an ordinary military deserter. 48 The Tribunal addressed the question of whether the applicant would be accused of espionage. It made an express finding that it did not accept that there was a real chance that if the applicant returned to Iran he would be accused of espionage, taking photographs of barracks, making sketches of places he visited or of having divulged information to authorities overseas, as he claimed. The Tribunal was satisfied that there was no real chance that the applicant would be treated differently from any other deserter returning to Iran. The crime of desertion is one that applies irrespective of the identity of the deserter. I do not consider that prosecution for desertion of itself involves anything more than the enforcement of a law of general application. There was no suggestion that the applicant would be prosecuted for desertion in circumstances where another deserter would be treated differently. Rather, the Tribunal made an express finding to the contrary. Accordingly, I do not consider that this ground is made out.

CONCLUSION 49 It follows, in my opinion, that the application must fail. It should be dismissed with costs. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Counsel for the Applicant: Mr H Christie appeared pro bono

Solicitor for the Respondent: Australian Government Solicitor