W26 v Minister for Immigration & Multicultural Affairs

the decision of the primary judge 13 There were three grounds in the appellant's amended application at first instance. The first was that the Tribunal had erred in law in determining that prosecution for possession of a satellite dish would not be for a Convention reason. The second ground was that the Tribunal had erred in law by applying the wrong test of proof to its satisfaction when determining whether the appellant's claims of past persecution had in fact occurred and when testing and determining the appellant's claims to have a well-founded fear of persecution if returned to Iran. The third ground was that the particulars given in relation to the second ground showed that the Tribunal had made a jurisdictional error. 14 In relation to the first ground, the learned primary judge expressed the view that however repugnant the statutory or bureaucratic censorship of information might be, it did not amount to persecution of those who would wish to receive such information. Possession of a satellite dish in contravention of the law did not, on the face of it, (so his Honour held) constitute the expression of a political opinion, nor did it provide a basis for imputing a political opinion, except in the sense that the contravenor thought that the law was a bad one or should not be obeyed. His Honour concluded that to punish and prevent contravention of a law of general application, even one which is directed at the censorship of the free flow of information, did not constitute persecution for a Convention reason. 15 In relation to the second ground, the essence of his Honour's reasoning can be seen in the following: "Having regard to its (the Tribunal's) wholesale rejection of the applicant's testimony, it appears that on the central issues relevant to the Convention criteria for refugee status the Tribunal had no real doubt. That is to say it was a necessary implication of its reasoning that the applicant would face no real chance of persecution for a Convention reason if returned to Iran. There was therefore no scope for the application of the so-called "what if I am wrong" test." 16 His Honour held that under the third ground the applicant was seeking to re-visit the preceding grounds and that there was no scope for the application of that ground.

the appeal 17 The grounds of the appeal were as follows: "a) There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fears (sic) of persecution by reason of his political opinion real or imputed if he returned to Iran within the reasonably foreseeable future. b) The decision involved an error of law, being an error of law, involving the incorrect interpretation the applicable law (sic) of (sic) an incorrect application of the law to the facts as found by Tribunal or both." 18 The appellant did not have legal representation at the hearing of the appeal. He was unable to assist us with any relevant submissions. 19 In his outline of submissions counsel for the respondent noted that the notice of appeal appeared to refer to two grounds of review under s 476(1) of the Act and that the first had not been raised before the primary judge. The respondent also noted that there was no allegation of any error in the decision of the primary judge which, so it was put, was clearly correct.

my reasoning 20 The Tribunal's decision to disbelieve the appellant was based on its view that he had changed his evidence in a number of significant respects in the course of the processing of his application. If the Tribunal can be seen fundamentally to have misconceived the applicant's evidence which accompanied that application, then, in my view, it will have ignored relevant material in a manner which affected the purported exercise of its power, and thus will have made an error of law: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [82]. 21 The Tribunal's reasoning process started with its characterisation of what the Tribunal thought the appellant had said about his political activities, before his imprisonment in 1994, in his statement accompanying his original application. [As I have mentioned above, the Tribunal accepted that the appellant had been imprisoned in 1994.] The Tribunal, quoting from that statement, said that the appellant's political activities involved "talking to the workers and expressing my opinion about the regime's corruption and lies" (see page 17 of its reasons). But immediately after this in the appellant's original application statement, there appeared the following additional sentences: "I would call meetings and explain this to the people. I used to point out the hypocrisy of the regime." 22 There is no doubt that earlier in its reasons (see page 5) the Tribunal referred to that part of the applicant's original statement in which he referred to meetings. But that was in the context of the events of late March 2000. 23 The Tribunal purported to assess the probability that the appellant's imprisonment in 1994 was due to his political activities on the basis of those activities as he originally described them. ["Given the nature of the Applicant's activities as he originally described them, I consider it implausible that he would have been imprisoned for six months in 1994 for his political activities".] It assessed the likely consequences of the activities in the light of independent country information from the Australian Department of Foreign Affairs and Trade. 24 The problem with the Tribunal's assessment, as I see it, is that it too narrowly confined the appellant's original claims (i.e. those which accompanied his application) to talking to the workers and expressing his opinion about the regime's corruption and lies. It overlooked and did not include in those claims any mention of the applicant calling meetings (before his imprisonment in 1994) at which he explained the regime's corruption and lies, and pointed out the hypocrisy of the regime. Its failure to do that was magnified by the fact that the applicant's original claims included the claim (as the Tribunal acknowledged at p 17 of its reasons) that when later employed at the car company his activities were similar to his previous activities at the glass factory. 25 The Tribunal accepted evidence that the appellant had been imprisoned in 1994. There was no evidence that the appellant had committed anything other than political offences. 26 The Tribunal chose not to make any findings about whether he was tortured while imprisoned, unless the following can be taken as such: "I do not accept that the Applicant was imprisoned and tortured by reason of his political opinion …". 27 I do not think that such an implication should be made. 28 I think, that in the light of the Tribunal's acceptance that the appellant was imprisoned, its failure to deal with the claim of torture, its failure to consider why the appellant was imprisoned, and its failure to make a clear finding about the appellant's claim to have encouraged the 1999 strikes and demonstrations, exposed its views on materiality in a significant respect - see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at [10]. 29 As there was absolutely no evidence that the appellant had committed any non-political offence, if the Tribunal had asked itself why (as it accepted) the appellant had been imprisoned, it would inevitably have been left in a situation of doubt. 30 In those circumstances the Tribunal was, in my opinion, obliged to take into account the chance that the appellant was punished for a Convention reason. It did not engage in that process and thus failed to follow the course suggested in the main judgment of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576. I disagree, respectfully, with the learned primary judge's conclusion that there was "no scope for the application of the so-called 'what if I am wrong' test". 31 Accordingly, in my opinion, by ignoring the relevant material about the appellant organising political meetings at both factories and thereby erroneously finding that his political activities at those factories were confined to talking to his colleagues at work, by failing to make clear findings about whether the appellant was tortured when imprisoned in 1994 and whether he encouraged the 1999 strikes and demonstrations, and by failing to ask why the appellant was imprisoned, the Tribunal fell into the type of jurisdictional error identified by the High Court of Australia in Minister for Immigration and Multicultural Affairs v Yusuf at [77], [78] and [82]-[84]. 32 I would allow the appeal, set aside the judgment at first instance and the Tribunal's decision and remit the matter to the Tribunal. The appellant was unrepresented before us, but was represented at first instance. I would order the respondent to pay the appellant's costs of the application. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RD NICHOLSON J: 33 I have had the advantage of reading in draft the reasons of Carr J. Accordingly I do not repeat here the factual and background circumstances there set out. 34 In his reasons Carr J states the Tribunal did not make an express finding about the appellant's credibility. I am unable to share that view. The Tribunal prefaced its finding that it did not accept the appellant was detained for two days in 1987 because of his political activities with the words "Having regard to the view I have formed of the Applicant's credibility…". Prior to that statement the Tribunal had firstly referred to and identified its view that that appellant had changed his evidence in a number of significant respects. Secondly it had made the following finding adverse to the appellant: "I do not accept that the Applicant would have been regarded by the Iranian authorities as someone attempting to coordinate, or to participate in, organised political opposition to the regime in Iran or as someone who was potentially in a position to do so. His activities as he originally described them were confined to criticising the regime in his workplace and there is nothing in his evidence to suggest that he ever attempted to contact any of the organised political opposition groups inside or outside Iran." Thirdly, it continued: "Given the nature of the Applicant's activities as he originally described them, I consider it implausible that he would have been imprisoned for six months in 1994 for his political activities." It found fourthly: "I do not accept the Applicant's evidence with regard to the reason why he was imprisoned in 1994. I do not accept that the Applicant was imprisoned and tortured by reason of his political opinion." Taking into account this context, it is my view that the Tribunal was making a general adverse credibility finding in relation to the appellant when it referred to the view it had formed of the appellant's credibility. 35 In recounting the activities of the appellant at his place of work the Tribunal did more than only refer to the appellant "talking to the workers". It referred to his original statement where he said agents from the protection services had called and, in that context, that a man had taped his talk "during one of our meetings". It referred to his interview by the primary decision-maker where he said he began talking to small meetings of four people in his office but other people had been invited to come to those meetings and they had distributed leaflets. Likewise it referred to his activities with a second company which "had again taken the form of meetings at the factory" which had been "small meetings" of about twelve people. It noted the primary decision-maker had referred to the statement by the appellant on his arrival that "he had been very active in encouraging other people, not only students, to go on strikes or demonstrations". Additionally, it referred to the appellant's statement he had encouraged other workers to participate in student demonstrations. The Tribunal referred also to the appellant's further statement submitted by his representatives including his claim to have encouraged his friends and colleagues against the regime and to have occasioned 200 people to support the university students. In recounting the appellant's evidence, the Tribunal recorded: "He said that he had won the trust of four or five colleagues with whom he had discussed working against the regime. They had met discreetly so no one would be able to find out. They would invite five or ten other people to meetings which Ayat Mahmoodi would address, so there would have been ten people altogether attending these meetings. The Applicant said that they had not met at break times in the glass company: this had been at the second company." It continued: "The Applicant said that besides holding these meetings his group had photocopied pamphlets which they had distributed both within the company and outside the company, to people in the areas where they lived." It added: "The Applicant said that he had resumed his political activities when he had begun working at the car company. He said that he had met with a group of like-minded colleagues. They would invite other people to attend their meetings but there would not have been more than 17 or 18 people there at any one meeting. I noted that the Applicant's representative had said that the Applicant had sometimes addressed a large audience. The Applicant denied that he had said this." In the context of all these matters, I consider that when the Tribunal referred to the appellant "talking to the workers" it was using language referrable to all the evidence on the types of meetings referred to above. That clearly included the calling of meetings by the addition of other persons to the discussion group and the association of that activity with support for the 1999 strikes and demonstrations. 36 The appellant's statement in this respect must be read in the context of his evidence from which it is apparent that by referring to meetings he did not intend more than the evidence covered. What he referred to was considered by the Tribunal together with the associated evidence of involvement in the 1999 strikes and demonstrations. 37 The alleged failure of the Tribunal to make findings on why the appellant was imprisoned was a finding the Tribunal was not required to consider or make once it had made the third adverse credibility finding referred to above. It was not in any real doubt concerning that finding. It was not therefore in error in not proceeding to apply the "what if I am wrong" test and consider why the appellant had been imprisoned. 38 The appellant's claim of having been tortured was made as part of and associated with his claim to have been imprisoned. The adverse finding having been made concerning imprisonment, the Tribunal is also to be understood as having been in no doubt in deciding adversely to his claim of having been tortured. 39 In my view it did make a clear finding he was not tortured while imprisoned when it recorded it did not accept that the appellant was imprisoned and tortured by reason of his political opinion. 40 It follows I am unable to agree the Tribunal's exercise of jurisdiction was in error in the sense referred to in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 at [77], [78], and [82] - [84]. I am therefore unable to agree with Carr J that the appeal should be allowed. 41 As made apparent by Carr J, nothing additional arises from the grounds referred to in the notice of appeal. 42 For these reasons I consider the appeal should be dismissed.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.

On Appeal from a Single Judge of the Federal Court of Australia

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

FINKELSTEIN J: 43 The reasons for the difference of opinion between Carr J and RD Nicholson J about the outcome of this appeal is the imprecision with which the tribunal has expressed its reasons, as well as the tribunal's failure to explain why a fact which it accepted as true did not corroborate the appellant's claim. 44 The appellant is a critic of the Iranian government. By his own account he is not at the forefront of political activism. But he has organised meetings at work sites during which there was discussion about the government's "corruption and lies". He has distributed articles and pamphlets critical of the government. He was involved in organising an anti-government demonstration in 1999. 45 To justify his claim that he has a well-founded fear of persecution, the appellant asserted that, as a result of his political activities, he was detained for two days in 1987, imprisoned for six months and tortured in 1994, was warned to stop his political activities in 1997 and again in 1999 and was under investigation by the Revolutionary Guards in 2000. 46 Putting to one side his imprisonment in 1994, the tribunal did not accept as true many of the facts asserted by the appellant. It rejected them because it did not accept the appellant as a credible witness. As for the events of 1994, the tribunal accepted that the appellant had been imprisoned, presumably for six months as claimed. However the tribunal said: "I do not accept that the [appellant] was imprisoned and tortured by reason of his political opinion". What does this mean? One thing it must mean is that the appellant had not been imprisoned on account of his political activities. Why then was he imprisoned? To this the tribunal did not provide an answer and, from the evidence that was before it, the tribunal could not provide an answer. Why then did the tribunal not treat the appellant's imprisonment for six months as corroboration of his case? Again there is no answer. Let me Let me move on to another point. Did the tribunal believe that the appellant had been tortured while in prison? The answer is not clear because the statement is ambiguous. On the one hand the tribunal might be saying that it rejected the evidence that the appellant had been tortured. Another possibility is that the tribunal accepted that the appellant had been tortured, but not on account of his political opinion. If the latter statement is correct then one might ask why was the appellant tortured if not on account of his political opinion? Yet again the tribunal provides no answer. Nor does the tribunal explain why, if it accepted that the appellant had been tortured, that did not corroborate his general claim. Perhaps the tribunal had in mind that torture is just one of the ordinary incidents of imprisonment in Iran. 47 Does this demonstrate legal error? It clearly demonstrates an illogical approach to decision-making, but as we now know that is not sufficient reason for a court to set aside the decision. At least that is the view of the Full Court: see Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411. 48 Should the tribunal have approached the case on the basis that, contrary to its findings, there may have been a possibility that the appellant had been imprisoned on account of his political opinion or tortured on account of his political opinion, in order to resolve whether he was a Convention refugee? With a good deal of hesitation, I have come to the conclusion that the tribunal was not required to approach the matter in this way. The tribunal, by whatever process of reasoning, was satisfied that the appellant had given a false account of events. It must have been its finding as to the appellant's credibility that led the tribunal to reject his assertion that he was "imprisoned and tortured by reason of his political opinion". In that event, the tribunal's finding is not an error of law, notwithstanding the unsatisfactory reasoning that it employed. 49 In the result I would dismiss the appeal. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 13 February 2002