W375/01A v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellant was unable to persuade a delegate of the respondent ("the Minister"), and on review of the delegate's decision, the Refugee Review Tribunal ("the Tribunal"), that he was a refugee under the Convention and Protocol relating to the Status of Refugees done at Geneva and New York ("the Convention") and entitled to a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act"). The appellant applied to the Court under s 476 of the Act for review of the Tribunal's decision. That application was dismissed by a judge of this Court. The appellant appeals from that decision. 2 The appellant came to Australia from Iran on a forged Turkish passport claiming that he feared persecution if he was required to return to Iran. Under ss 13 and 14 of the Act the appellant became an "unlawful non-citizen" upon arrival in Australia and, pursuant to ss 189 and 196 of the Act, was placed in "immigration detention" where he has been kept ever since. The way the appellant initially put his claim for asylum was as follows. In Iran, a fundamentalist Islamic country, it is illegal to drink alcohol and those caught drinking may be subjected to flogging, a fine or imprisonment, although a first offender is usually only fined if he or she shows remorse. Sexual relations before marriage is also illegal. The Islamic penal code prescribes ninety-nine lashes for sexual relations between unmarried couples, which can be avoided if the parties marry. The death penalty may be imposed in the case of adultery. 3 The appellant had been a driver for a lieutenant general in the Revolutionary Guards (Sepah Pasdaran). From time to time he was required to chauffeur members of the lieutenant general's family, including his daughter. After a time the appellant and the lieutenant general's daughter struck up a friendship. On one occasion the appellant took his girlfriend to a party where alcohol was served. The party was raided by the police and the appellant was arrested both for drinking alcohol and being with an unmarried woman. The appellant says he was detained for four months, during which time he received fifty lashes by way of official punishment and was otherwise subjected to beatings and other forms of inhumane treatment. 4 Upon his return from prison, the appellant said he was exiled to the countryside and demoted to a cleaner. From time to time, however, the appellant returned to his home in secret and met his girlfriend. His parents asked his girlfriend's family if the couple might marry. When the girlfriend's parents refused, the couple decided to have sexual relations in an attempt to force her parents to consent. The appellant's girlfriend told her mother, who in turn told the lieutenant general. The next thing the appellant heard was when his girlfriend sent him an urgent message that he should run away. The appellant feared that he would be killed by her father's "contacts" and so fled the country. 5 According to the Convention definition of refugee, in order to establish refugee status a claimant must demonstrate a fear of persecution "for reasons of" one of the five stipulated grounds - race, religion, nationality, membership of a particular social group or political opinion. This requires a causal connection between the feared persecution and one of the grounds. The delegate of the Minister who considered the application for a protection visa could have taken the view that the appellant had not established the necessary causal link because the events he described were personal affairs and any threat to the appellant was not based upon a Convention ground but was caused by an irate father wishing to protect what he perceived to be the moral wellbeing of his daughter. So far as the claim was concerned, the girlfriend's father was indifferent to the appellant's race, religion, nationality, social grouping or political opinion. However, the delegate was prepared to accept that the appellant had a fear of persecution for a Convention reason. He reached this conclusion, so it seems, because the appellant also claimed that he would be mistreated because he had left Iran illegally. In the event, the delegate held the appellant's fear of persecution not to be well-founded. 6 As was his right, the appellant took the delegate's decision to the Tribunal for review. In support of his case before the Tribunal the appellant relied on a "supplementary statement" in which he appeared to claim a different basis to found his fear of persecution. In the supplementary statement the appellant stated that his main reason for leaving Iran was: "[W]orking in the military place and I have noticed some robberies which have been done by high rank responsibles (in the sepah pasdaran). Of course with understanding this problem made a dangerous situation for me, because the lack of the management in Iran and there is lack in the structure of the social, political, economical and military they survey everything with political aspects (specially disclosing this robbery by me) for this reason a dangerous situation was made for me which caused that I fled to Bandar Abbas and then coming to Australia through an Arabic country [sic]." 7 By this evidence the appellant sought to bring himself within those cases which have held that a challenge to official corruption can sometimes be an expression of political opinion because a claim of corruption may be perceived as a challenge to the government's authority and a political act. See eg: W68/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 148 at [48]-[53]. The appellant also raised his concern that because he had run away from the Revolutionary Guards and fled the country, his life would be in danger if he returned because it would be suspected that he was a spy. 8 The Tribunal did not accept as truthful the evidence in the supplementary statement, finding that it was a recently invented account to bring the appellant within the Convention definition of refugee. It is important to explain the means by which the Tribunal reached this conclusion. The process is not unique to this hearing. It is adopted in many cases that come before the Tribunal. 9 The task of the Tribunal, which in effect stands in the shoes of the Minister (see s 415(1)), is to determine whether it is satisfied that a putative refugee has a well-founded fear of persecution for a Convention reason. To that end the Tribunal is required to form an opinion of what may occur if the putative refugee is returned to his (or her) country of nationality and, for that purpose, it will usually be required to make findings about past events and use those findings as the basis for its conclusion as to the risk of occurrence of future events: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574. 10 To deal with the instant case it was necessary for the Tribunal to determine whether the appellant was a witness to "robberies which have been done by high rank [people in the Revolutionary Guard]" as he had asserted, and then to decide whether there was a "real chance" that he might suffer persecution at the hands of the authorities for this reason. In this regard the Tribunal was entitled to accept as correct the fact asserted by the appellant. Or, if there were probative grounds for disbelieving the appellant's account, it could reject the asserted fact. 11 The Tribunal had before it some material (it may be inappropriate to refer to such material as "evidence": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282) on which it could assess the credibility of the appellant. The material included four or five accounts of events given by the appellant. We should explain how these accounts found their way into the hands of the Tribunal. When a non-citizen arrives in Australia without a visa, he or she is interviewed by an officer of the Minister's Department (commonly referred to as an "arrivals officer"), who asks standard form questions and makes a written record of the answers that are given. One question asked is: "Why did you leave your country of nationality (country of residence)?" This appears to be the first opportunity a putative refugee has to explain why he fears persecution, although that is not the answer sought by the question. It must be remembered that people who come to Australia seeking refugee status often speak no English. So the question is usually answered with the assistance of an interpreter. It should not be assumed that the translation is precise. It may be anticipated that the information recorded will be a brief summary of the applicant's true case, and will often be given in words which the applicant would not have chosen were he able to speak English. This involves no criticism of the interpreter who assists the non-citizen in responding to the questions put by the "arrivals officer". Far from it. Often the interpreter will not be aware of the significance that will be attached to the precise words that are used. It may be that the interpreter acts in the mistaken belief that a summary of the applicant's case is sufficient. On some occasions the "initial interview" may be recorded. 12 The second occasion on which the putative refugee will give his account of events is on his application for a protection visa, which will also often be completed by the applicant with the assistance of an interpreter or an agent. In that application form the applicant is asked to provide "Your reasons for claiming to be a refugee". In addition to the information provided in the application form, an applicant may provide an accompanying written statement which explains his position in a little more detail. 13 The third occasion on which the applicant will give an account of events is when he is interviewed by an officer called a "protection officer" who may be the delegate who considers the application. Often the interview is recorded, and, in any event, a written summary of the interview is prepared. That summary is made available to the Tribunal. Here again an interpreter will be involved if the applicant does not speak English. 14 If the applicant is refused a protection visa by the delegate, he may make application to the Tribunal for a review of that decision. This is the fourth occasion on which the applicant may give an account of the events, usually in the form of a written statement. Finally there is the hearing before the Tribunal where the applicant will be asked questions about his claims, and will provide more information. 15 As anyone with even a passing familiarity with litigation will know, to have to give a decision-maker three or more separate versions of the basis for a claim is an invidious position to find oneself in, even in the case of an honest witness. All the more so when the accounts have been provided by a person who speaks no English and who has required the assistance of an interpreter. It is inevitable that each version will be slightly different, and may even be very different once the impact of the interpreter is taken into account. 16 In Wu the High Court instructed the Federal Court in the conduct of judicial review of decisions by the Tribunal. The High Court said (at 272) that the reviewing court should not be over-zealous in its examination of the reasons of the Tribunal and should avoid minute and fine scrutiny by "an eye keenly attuned to the perception of error", citing Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. The reason given was that to scrutinise the Tribunal's reasons too closely to find error of law, may result in an impermissible review of the merits of the decision. Of course the Federal Court is not entitled to review the Tribunal's decision on the merits. But provided the Court acts with due caution, it may look closely at the decision to see whether there is legal error. In reviewing the Tribunal's reasons the Court is entitled to take into account the fact that the Tribunal is constituted by trained personnel, it has obvious expertise in the performance of its functions, it has legal advice available to it, and its members are familiar with the relevant legal principles: Wu at 292 (where Kirby J did not make any distinction between the position of a Ministerial delegate and the Tribunal). There is no reason to suppose that the Tribunal does not mean what it says, and says what it means. Moreover, in refugee cases there is good reason to look at the Tribunal's reasons, not, of course, with an eye attuned to the perception of error but to ascertain whether, in truth, there is a reviewable error of law. Indeed, in these cases it is the duty of the Federal Court to subject the Tribunal's decision to "more rigorous examination" than in other cases, and for obvious reasons. In R v Secretary of State for the Home Department, Ex parte Bugdaycay [1987] AC 514 Lord Bridge explained (at 531): "The limitations on the scope of [the court's power to review] are well known and need not be restated here. Within those limitations the court must, I think, be entitled to subject an administrative decision to the more rigorous examination, to ensure that it is in no way flawed, according to the gravity of the issue which the decision determines. The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny." See also Lord Templeman at 537. 17 Putting all of this to one side, the same approach is not required of delegates of the Minister (including the Tribunal). They may adopt a different approach because they are there to find the facts. In undertaking that task, the delegates often examine minutely the words used by the applicant with an eye keenly attuned to finding inconsistency, for the delegates see inconsistency as the stamp of falsehood. Learned authors in this field (see Hathaway The Law of Refugee Status 1991 at pp 84-86; Goodwin-Gill The Refugee in International Law 2nd ed. 1996 at pp 354-356), and other sources, have cautioned that great care must be taken in adopting that approach. Such "inconsistency" may be explained by various circumstances, none of which provides a foundation for an adverse finding on the credit of the applicant. The "inconsistency" may be explicable by looseness in language, or the result of an inability on the part of the visa applicant, in company with most others, to recall events with precision, particularly if many years have passed by. It may result from different ways in which a question is posed or interpreted, or from the confusion an applicant suffers by reason of trauma or dislocation. 18 The United Nations High Commissioner for Refugees, in its Handbook on Procedures and Criteria for Determining Refugee Status Jan 1992 ed. Geneva 1979 ("the Handbook"), provides such advice in pars 198, 199 and 202: "198. A person who, because of his experiences, was in fear of the authorities in his own country may still feel apprehensive vis-ŕ-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case. 199. While an initial interview should normally suffice to bring an applicant's story to light, it may be necessary for the examiner to clarify any apparent inconsistencies and to resolve any contradictions in a further interview, and to find an explanation for any misrepresentation or concealment of material facts. Untrue statements by themselves are not a reason for refusal of refugee status and it is the examiner's responsibility to evaluate such statements in the light of all the circumstances of the case. … 202. Since the examiner's conclusion on the facts of the case and his personal impression of the applicant will lead to a decision that affects human lives, he must apply the criteria in a spirit of justice and understanding and his judgement should not, of course, be influenced by the personal consideration that the applicant may be an 'undeserving case'." 19 In Guo v Minister for Immigration and Ethnic Affairs (1996) 64 FCR 151, overturned on appeal but not on this point, Foster J (at 194) made the following pertinent observations after setting out the above passages from the Handbook: "I would also make the observation that even the most experienced decision-maker can encounter considerable difficulty in assessing the credibility of a witness, especially where that witness is disadvantaged by problems of language and lack of familiarity with the situation in which he or she is placed. It is well to remember that self-contradictory statements and apparent evasiveness, although of obvious importance, do not necessarily require a conclusion that the witness is being untruthful in those aspects of his or her evidence or, more significantly, that the whole of his or her evidence should be rejected. Exaggeration or even fabrication of parts of a witness's testimony does not exclude the possibility that there is a hard core of acceptable evidence within the body of the testimony. Where proof beyond reasonable doubt is required, self-contradiction, inconsistency and evasiveness may, of course, give rise to sufficient doubt to warrant the rejection of evidence. However, in cases where only a real possibility need be shown, care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted." 20 We turn now to the hearing before the Tribunal. When the appellant attempted to explain why his knowledge of corruption on the part of the Revolutionary Guards had caused him to leave Iran, the following exchange took place: "But I am not clear on what this had to do with you leaving Iran? Translated I am citing you an example how could an innocent family could be sentenced in this century to drug trafficking while they had no involvement, but I was witnessing this side of it. Well can you tell me why you have never suggested until the statement that you sent to the Tribunal through your representatives a matter of a little over a week ago, that you witnessed these thefts and so forth while you were working in the Sepah Pasdaran. Translated I did say that I have experienced and I have actually seen lots of events, I mentioned that thing in my case. This situation that I mentioned to you is only some of this, what was happening that I must have witnessed. Well previously when you were interviewed shortly after your arrival in the statement that accompanied your original application and when you were interviewed by the officer of the Department who made the decision on your application, you suggested that all your troubles had to do with your having slept with the daughter of the General. Translated No Mister Judge look or listen to my tape, I said that there was some obnoxious happening which is happening in the Sepah which actually the third thing you know to be further involved. I have mentioned those things if you have listened to the tape. You didn't suggest that that had anything to do with you leaving Iran when you did. Translated My mainly problem was with the Sepah. I didn't want to go back to the Sepah. You see my relationship with that Brigadier is a personal cause, it has got nothing to do with that. You see Iran is not that …? On law as that, to come and kill me, because of my relationship with that girl, they will not do that. [sic]" 21 In due course the Tribunal found that it was not satisfied that the appellant had a well-founded fear of persecution. One reason which led it to that conclusion was that the Tribunal did not consider the appellant to be a "witness of truth". The Tribunal said: "I consider that he [the appellant] has decided to attempt to alter the basis of his application because he has realised that his claims based on his having slept with the General's daughter do not bring him within the terms of the definition of a refugee in the Refugees Convention. I do not accept that the [appellant] claimed when he was initially interviewed after his arrival in Australia that he had witnessed thefts, corruption or money-laundering in the Sepah Pasdaran." 22 If, as the Tribunal said, the appellant had not claimed that he had witnessed corruption at the time of his initial interview, that would provide a basis for rejecting his later account. However, herein lies the difficulty. It is to be noted that at the hearing the appellant protested against the suggestion that his claim about witnessing corruption was recently invented. He asked the Tribunal to listen to his copy of the tape-recording of the interview to verify this. If the Tribunal was not willing to listen to the copy tape, it could easily have obtained the original if it was not already in its possession. We note that the hearing before the Tribunal was conducted by videolink in which the Tribunal, interpreter and applicant's agent were in Sydney and the appellant in a telecentre in Derby in the north-west of Australia. The Tribunal refused to hear the tape. In its reasons it provided the following explanation for that course: "[A]s I put to him, there is no mention of these things in the record of that interview on the Departmental file and what he is recorded as saying in that interview is consistent with his subsequent evidence in the statement accompanying his original application and at the interview with the primary decision-maker. 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 that this indicates that this claim is a fabrication." 23 During the appeal the appellant attended the court in person unassisted by a lawyer, but with an interpreter present. The appellant asked the Full Court to listen to the tape the Tribunal had refused to hear and to have the relevant portion of it translated. He produced his copy of the tape. However, it was a poor copy and it was not possible to understand what was said. The Court adjourned the hearing of the appeal to enable the Minister to obtain the original tape. There was no objection to the tape being played and the translated contents being received in evidence. The interpreter was asked by the Court to "listen to [the tape] and tell us what is said". This is her translation: "When I started with the Sepah I thought they are a organisation working for people but when I continued working with them my perception of them totally changed because I realised they are unworthy, illiterate, unsuitable, unjust and thieves and then I realised not only they are not working for people, they are against - they are doing this to the Iranian people. That's basically the answer to the question. [sic]" 24 The interpreter was then asked to write down the translation so that there would be a proper record of it. This was done and when the two translations are compared, the problem with interpretation is apparent, even in a case where the interpreter knows a precise translation is required. This is the second account: "Q. Given that you have done all those things isn't it unusual that you would be accepted in this organisation? A. When I started with the Sepah I believed that it is an organisation for people but later I found that they are a group of unworthey, illiterate, unsuitable, unjust and thives which I have seen it with my own eyes. I lost my faith and trust for the regim and everything. [sic]" 25 Two points can be made about what the appellant said at the first interview. First, none of it appears in the summary of the interview. Perhaps this is not surprising. The notes do not purport to be more than a summary. Second, the similarity between what the appellant said in the initial interview and what he said in his supplementary statement is sufficiently close to show that if the Tribunal had heard the recording of that interview it could not have concluded that the supplementary statement was a "fabrication" for the reason it gave. 26 The Tribunal was correct to point out that the appellant had not relied upon his witnessing of official corruption as the "main reason" for leaving Iran. But that is hardly a relevant point. If the appellant had two reasons for leaving Iran, one a Convention reason and the other not, the appellant's assertion that one of those reasons was his main reason for leaving Iran does not lead to the conclusion that the other reason that he feared for his safety if he returned to Iran is not a Convention reason. Put another way, if the appellant relies on all the asserted facts, that he may have mischaracterised some as Convention based does not permit the Tribunal to ignore the others, provided that those facts establish a Convention- based fear of persecution. 27 It follows that the Tribunal made a serious mistake. Is the mistake an error of law providing ground for judicial review? We think it is. The Tribunal refused to receive relevant and probative evidence then available to it. This is not a case where evidence had been rejected because of a belief that the evidence would not establish what the appellant was asserting. On one view, such an error may not go to jurisdiction. Here the situation is different. The Tribunal failed to perform the duty imposed on it by the Act (s 425(1)) to decide the appellant's case on the material put to it and by conducting an appropriate inquiry thereon: The Queen v Marsham [1892] 1 QB 371; Toronto Newspaper Guild v Globe Printing Co [1953] 3 DLR 561; Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 per Gleeson CJ at [14], Gaudron and Gummow JJ at [42]-[44], McHugh J at [67], Hayne J at [149]-[155], Callinan J at [163]-[164]; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gleeson CJ at [4]; Wade and Forsyth Administrative Law 7th ed. 1994 at pp 318-319. That is to say, by not fully listening to the case the appellant wished to put, the Tribunal declined to exercise its jurisdiction and failed in its duty: Board of Education v Rice [1911] AC 179 at 182; Local Government Board v Arlidge [1915] AC 120 at 132-133. It is an error which provides ground for review under either s 476(1)(b), (c) or (e) of the Act. By refusing to hear "evidence" on a cardinal issue, the Tribunal purported to make a decision for which it did not have jurisdiction (s 476(1)(b)), or to make a decision it was not authorised to make (s 476(1)(c)), or so acted because of an error in its understanding of the relevant law (s 476(1)(e)). See Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gleeson CJ at [10], McHugh, Gummow and Hayne JJ at [76]-[85]. 28 The orders that will be made are to allow the appeal, set aside the judgment below, as well as the decision of the Tribunal, and remit the matter to the Tribunal for re-hearing. As the reasons of this Court are distributed throughout the world on the Internet and it is appropriate that the identity of the appellant not be disclosed, the Court has referred to the appellant in the title of the proceedings as W375/01A. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.