W70/2001 v Minister for Immigration & Multicultural Affairs

Grounds of review Ground 1 14 Ground 1 asserts that the Tribunal misconceived the applicant's case by treating it as if he had advanced two claims, the first based on the situation which existed prior to his departure from Iran, and the second based on events which took place after his departure, and which would have grounded a sur place application for refugee status. In so doing it is contended that RRT identified a wrong issue, acted without jurisdiction and based its findings on irrelevant considerations. 15 The applicant relied on a continuum of events beginning with his time at the University of Shiraz, up to and including the arrest of Saeed and Javad, as establishing a subjective fear of persecution which was objectively well-founded. The submission from his adviser to RRT made that plain. 16 Once the applicant learnt of his error in relation to ZM1 and ZM2, it might be technically correct to characterise his claim thereafter as being a sur place claim. But assessment of that claim necessarily involved consideration of the applicant's claims as to his political activities in Iran, and in giving consideration to those issues RRT neither identified a wrong issue nor based its findings on irrelevant considerations.

Ground 2 17 Ground 2 asserts that by treating the applicant's evidence of his activities as a student as if it were the basis of his fear of persecution, rather than the background to fears based on a sur place claim related to more immediate events, the Tribunal identified a wrong issue and reached a decision for which it did not have jurisdiction, and based its findings on irrelevant considerations. 18 It is the applicant's contention that if returned to Iran without travel documentation he will be questioned; as a result of that questioning there will be an enquiry as to his past; as a result of that enquiry his political activism whilst at University will be uncovered. 19 For similar reasons to those given in relation to ground 1, this ground on which review is sought fails. RRT simply did not accept that the applicant was of any interest to the authorities by reason of any activities which he had undertaken whilst he was at University.

Ground 3 20 This ground asserts that in rejecting the applicant's claim to have been an anti-government activist, on the basis that he would not have been posted to a sensitive missile post during his military service if he did not enjoy the confidence of the Iranian security services, RRT acted outside jurisdiction, made a finding of which there was no evidence and made a finding of fact so unreasonable that no reasonable Tribunal of fact would have reached it. 21 The Tribunal's treatment of this topic was as follows: "The applicant said that he worked in the Ministry of Defence for the rocket testing division and they may think that he will reveal some of the confidential information he guarded because he had left the country. I reject this claim. The fact that the applicant was able to do his military service in such a sensitive site is an indication that he is held in high regard by the authorities. Further, he previously left Iran and returned and found employment without the slightest difficulty after he finished his military service. I do not accept that simply because he departed Iran again it will be assumed that he has revealed secret information." 22 The applicant asserts that there was simply no evidence or other material before the Tribunal on which it could found a conclusion that the fact that the applicant was able to do his military service in such a sensitive site is an indication that he is held in high regard by the authorities. 23 At the RRT hearing, the applicant accepted that he was put in a very sensitive position for military service. He also accepted that if he were suspected of being a political dissident he would not have been accepted for military service. RRT is entitled to act upon its own knowledge, and to draw inferences on the basis of fragmented information. It was entitled to draw the conclusion which it did as a matter of common sense based upon its knowledge of the circumstances in Iran without the need for direct and specific information to that effect. There is of course a difference between mere speculation, which is impermissible, and the drawing of inferences which is both permissible and appropriate. The Tribunal's finding in this respect falls into the latter category.

Ground 4 24 Ground 4 asserts that in rejecting the applicant's claim to have had a close political association with ZM1 on the basis that, had the applicant had such an association, he would have known that he was Jewish, and would not subsequently have been mistaken as to his arrest, RRT identified wrong issues, based its findings on irrelevant considerations and made a finding of fact for which there was no evidence or other material and which was so unreasonable that no reasonable Tribunal of fact would have reached it. 25 RRT's finding on this issue was as follows: "Had the applicant known his lecturer for many years and worked as closely with him as he claims he would have realised if his maths lecturer was Jewish in the context of Iranian politics. The applicant claims he did not even know the religion of [ZM1]. In the Iranian theocracy where religion plays a large part in life I do not consider it plausible that such a matter would go unnoticed by the applicant. Furthermore, in the particular circumstances the applicant describes and given the nature of his group, which the applicant claims is critical of clerics ruling Iran, I do not accept as plausible the fact that this issue would not be arisen in discussions. I am not satisfied that the applicant had the type of relationship involving politics and social criticism with his professor as he claims." 26 I am conscious of the observations in W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679, and in Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910 that in some cases a bare statement by a decision-maker that a claimed circumstance is "not credible" or is "implausible" may cloak the failure of the decision-maker to address and resolve a material question of fact. But that is not the case here. RRT gives reasons why it comes to the conclusion that it does not accept as plausible the fact that the issue of ZM1's religion would not have arisen in the course of discussions of the type for which the applicant contended. 27 There is no evidence in the record of the position of Jews in Iran but the tension between Iran/Islam on the one hand and Israel/Judaism on the other is common knowledge. In my opinion, RRT did not need specific evidence on this topic before it could draw the conclusion which it did. 28 Even if I am wrong in this conclusion, and if the applicant's contention is well grounded, it leads nowhere. The applicant now accepts that there is nothing about his relationship with ZM1 which will cause him any difficulty. The particular finding is a stand alone finding which does not lead to any relevant consequences so far as the applicant's sur place claim is concerned.

Ground 5 29 This ground asserts that in finding that RRT was not satisfied that the applicant would face persecution for reason of his lack of passport or other documentation, the Tribunal failed to take into consideration the real chance that return to Iran in such circumstances would alert security authorities to his previous history, including association with Saeed, who has now been arrested, and his security sensitive employment in a missile site, and in the oil industry, leading to suspicion that he may have been involved in activities contrary to the interests of the state while in Australia. Thus the Tribunal failed to identify a relevant issue, acted without jurisdiction and erred in law by an incorrect application of the law to the facts. 30 The applicant did not claim that he feared persecution by reason of his involvement in the oil industry. All other elements of this ground were the subject of specific consideration by the Tribunal which made findings adverse to the applicant's contentions in this respect. RRT considered the country information on the subject of returned asylum seekers and concluded that a person such as the applicant would not be at risk on his return. RRT rejected the applicant's claim that he was exposed to risk by reason of any association with Saeed, and rejected the claim that the authorities would assume that he had disclosed military secrets.

Ground 6 31 This ground alleges that in rejecting the applicant's claim that his present fear of persecution was based upon the arrest of Saeed, on the basis that it had not been raised at the first opportunity, the Tribunal made a finding of fact for which there was no evidence or other material to support it, and which was so unreasonable that no reasonable Tribunal of fact would have found it, and failed to consider whether there was a real chance that the applicant was being truthful in making this claim. 32 At CB 186-187 RRT said: "The applicant now claims that he may not have been of interest to the authorities at the time he left Iran but now he is at risk because Saeed (or Saied) was arrested. In an interview with DIMA on 2 July 2000 the applicant gave several reasons for leaving Iran but did not mention this as a reason. The applicant claims he did not mention Dr Zad Mehr or Saeed in the interview that he had with DIMA because he was afraid about giving names. I reject this claim because it is the applicant's claim that he came to Australia to claim refugee status. I must take into account that the applicant is an educated man with some experience in travelling and employment. I do not accept that he would not have mentioned these important matters had they been true and had this been the reason for his travel to Australia. Furthermore it is inconsistent with his claim that neither he nor his family had involvement in activity against the government or political groups." As earlier indicated, there is no mention of ZM1 or Saeed in the record of the interview of 2 July 2000. Both are referred to in the statutory declaration of 12 October 2000. RRT earlier noted the applicant's claim that he made the disclosures in the declaration of 12 October 2000 after ASIO assured him that his disclosures would be kept confidential. 33 Hathaway in The Law of Refugee Status (1991) states at 84: "... the decision maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state." 34 It was a matter for RRT to decide whether to attach any, and if so what, significance to the non-disclosure of these matters at the first interview, and to decide whether it accepted the applicant's explanation for non-disclosure. RRT concluded that the failure to disclose was significant. For reasons which RRT gave it came to the conclusion that the matters would have been disclosed at the first interview if they were true. RRT dismissed them as being in the nature of a recent invention. 35 This ground is in substance a complaint about the merits of the Tribunal's decision, and discloses no proper ground of review.

Ground 7 36 This ground alleges that the conduct of the hearing by the Tribunal in an adversarial rather than an inquisitorial manner, coupled with the errors referred to above, indicates that the decision to affirm the refusal of a protection visa was induced or affected by actual bias. 37 In Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at 438 Gleeson CJ and Gummow J said: "The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented." Whilst it is clear that a conclusion of actual bias may be drawn by inference of the circumstances, a conclusion of actual bias is not one which is to be lightly made: Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885. Whilst Wednesbury unreasonableness is not a ground of review under Part 8 of the Act, demonstration that conclusions reached by RRT ought to be so characterised could be relevant to a claim of actual bias. 38 In Jia at 429 Gleeson CJ and Gummow J referred to the observations of French J at first instance to the effect that the fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias. In Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565 at [81] Stone J said, referring to the decision of Sackville J in Yit: "Sackville J drew attention to the fact that the role of the Tribunal involves a variety of fact finding and information gathering functions that are characteristic of an administrative decision-making process and are very different from the role of a Court exercising judicial functions. This role may necessarily involve a Tribunal in forming tentative conclusions as it goes through the process of fact finding and information gathering. This process does not, in itself, indicate bias." 39 I have read the transcript of the hearing before the Tribunal. Questions put by RRT to the applicant indicate that the Member was highly sceptical about aspects of the applicant's claims. I will give some examples: "Yes, but you see, I can't believe that an intelligent, political activist would mix up a Jewish/English language professor with an Iran mathematics professor." (P 9) … "Mr White: Yes, well, I have great difficulty believing that an intelligent political activist like you wouldn't know the difference between a Jewish Rabbi and his own mathematics lecturer who he rings up by phone quite regularly." (P 15) … "Mr White: Well, you know, I just don't believe that you can be so involved with someone over several years and you can pass on information about missiles to him, but you don't even know if he is Jewish or otherwise. That is just too difficult for me to believe, I think." (P 16) … "Mr White: Well, I don't think that was a mistake, was it? It was just a story that you told when you got here because you thought you could pull - you thought you could tell a story to immigration and get away with it? It wasn't a mistake, was it?" (P 21) 40 The passage of the transcript upon which the applicant principally relies is as follows: "Mr White: Well, you see, I'm not sure that I believe either your friend Saeed or your brother being arrested. That's one of the things I'll consider when I'm deciding your case. Because if I don't believe that then it seems to me that you just don't have a serious case. Your advisers made some quite lengthy submissions on more general issues relating to being out of Iran as well as some submissions about the current situation in Iran and the security forces there I also need to consider more carefully. But it seems to me you are probably like so many young men in Iran today, who just want to migrate somewhere, who are educated, relatively well off but would like to do well financially and can do much better in a western country than they can at home." 41 In the applicant's submission the quoted passage is an expression of an attitude which the Member had; it reflects views which he held at the outset of the inquiry from which he was not prepared to budge. 42 On page 24 the following appears: "Mr White: Well, I mean, you spent a lot of money coming to Australia. I can appreciate that. But the trouble is that you didn't - it seems to me that you - you didn't just make a mistake about your lecturer, but you actually made up a story because you thought it would help you. And the reason you didn't mention Saeed's arrest at the first opportunity was that it didn't happen and that you needed more time to make up a story. So these are the decisions that I have to make when I come to deciding your case, which I'd hoped to do in the next week or so. I haven't made a decision yet but I'm just trying to point out to you some of the crucial areas that I'll be thinking about when I come back to decide your case." The applicant responded to this observation with an assertion that he had been truthful, and gave some reasons why he would not fabricate his account. 43 The last passage which I have quoted from indicates that the views which the Member was putting to the applicant were preliminary or tentative, and that the Member was open to persuasion. I do not think that his statement was just a piece of window dressing. A fair reading of the transcript leads to the conclusion that the Member put the matters which concerned him squarely to the applicant and invited him to deal with them. It was open to the Member to form the view that these matters were of concern. Directing an applicant's attention to perceived problems with his evidence, however bluntly, is not reflective of bias. In the passage quoted in [42] above the Member was putting one possible and legitimate interpretation of the applicant's circumstances to him for comment. The claim of actual bias fails. 44 The application should be dismissed with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Solicitor for the Respondent: Australian Government Solicitor