W82 v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT Introduction 1 The applicant is a single, 27 year old male of Iranian nationality. He arrived in Australia by boat without travel documents. Since his arrival he has been held in custody at the Curtin Immigration Detention Centre. On 25 November 2000, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. His application was refused on 9 January 2001. On 17 January 2001, he lodged an application for review with the Refugee Review Tribunal (" the Tribunal"). The application was refused on 5 March 2001. He lodged an application for review of the Tribunal's decision with this Court on 22 March. Factual Background 2 In his initial interview the applicant said he was born on 24 March 1973 in Iran. He has never married. He was educated to High School Certificate level, completing his education in 1994. He has four brothers and four sisters all of whom live in Iran. His father and mother also live there. The Tribunal set out his case in its reasons for decision. 3 In Iran the applicant had worked as a self-employed computer trainer in the town of Shush between January 1998 and May 2000. He was also employed part time as a soccer coach between May 1999 and July 2000. University students from a nearby town, Dezful, attended training sessions at his computer centre and used it as a gathering point. The applicant said he produced election materials for some fifteen candidates in the national parliamentary elections held in February 2000. The incumbent member for the area in which the applicant worked was re-elected and defeated a candidate who was popular with the students. The students demonstrated against the election result. They accused the successful candidate of stealing votes. They set fire to the local Ministry of Health building, a police vehicle and a tank. According to the applicant security forces attacked them and in the course of the attack six people died and over seventy were injured. Some of the injured students came to his office for refuge as it was not far from where the demonstration had been held. 4 Two days after the demonstration police questioned the applicant and accused him of participating in it. He told the Tribunal at the hearing that police had searched for demonstrators on the night of the protest and that he hid them. In his initial interview with the Department he said he did not let security officials enter his premises. When later questioned he denied the allegation that he participated in the protests but admitted he had assisted the injured students. He said the police had, while searching his premises, found some pamphlets his students had left there expressing support for the defeated candidate and opposition to the government. He had been detained and beaten over a period of ten days until he was released on bail after someone gave a guarantee to the police. He said at first it was his uncle, and then that it was a "distant relative", and at the hearing said it was a "friend of a cousin" who had provided the deeds to a house as a bail bond. 5 When he was released a fundamentalist religious vigilante group, Basiji, directed that he close his computer centre. He said he had no choice but to obey. His application form, however, had indicated that he continued to work at his office until May and at the Soccer Institute until July. His work permits were revoked. His employers at the Soccer Institute could not continue to use him with soccer coaching duties. He was not allowed to return to work or soccer training after his release and was constantly pressured to the point where he resorted to an agent to obtain a passport. 6 In early September 2000, the applicant said he was summoned to appear in court on 13 September. He immediately left Shush for Ahvaz which is about 100 kilometres to the south. He told the Tribunal he received the summons seven days before he was due in court and that he left the country two days later using his own passport, but with the assistance of a people smuggler to whom he had paid a bribe. He said his father had advised him to leave the country and that was advice he took because he was afraid he would be killed by members of the Information Section of the Iran Security Forces. The reason was that he was suspected of helping students produce dissident materials. 7 The Tribunal reviewed the evidence and also considered independent country information. It accepted that the applicant is an Iranian national, outside his country of nationality. It also accepted his evidence that he was neither politically interested nor politically active in Iran. It characterised his claim as one of persecution on the basis of imputed political opinion which arose from the discovery at his premises of printed materials for opposition candidates in the February 2000 national parliamentary elections. He also feared that his actions in seeking asylum in Australia would expose him to a risk of persecution if returned to Iran. 8 The Tribunal accepted that the applicant operated a computer training centre but did not believe that he was alleged to have participated in a demonstration in Shush during which six people died and over seventy were injured. The only report of a demonstration of that size was a protest in Shadegan. Having regard to the size of the demonstration and the fact that there were reports of contemporaneous demonstrations in Shush, the Tribunal was satisfied that a demonstration with the results described by the applicant did not take place there. It also noted that there was no confusion over the site of the demonstrations as the applicant stated that his training centre was close to the protests. 9 The applicant's claim was seen as inconsistent with information from the Department of Foreign Affairs and Trade ("DFAT"). Moreover he was said to have provided inconsistent evidence about his own experiences. In his initial interview he said he was released from detention because his interrogators could not find any evidence about his participation in the protest. Later he claimed students had left printed material supporting an opposition candidate, although at the hearing he said he was not aware of what was written on the flyers found at his premises. With respect to his release, he said his bail was posted by an uncle. Then he said it was posted by a distant relative and again later by a friend of a cousin. The Tribunal found it "odd" that he could not be certain of the person who facilitated his release by providing the deeds of a property for collateral, particularly as that person would apparently forfeit that property as a consequence of his conduct after his release. 10 His evidence about the closure of his business and his dismissal from the Soccer Institute because of imputed political opinions was regarded as ambiguous. At the hearing he told the Tribunal that he did not return to his office or soccer training after his release in February. However he also said he was permitted to return to work so that the authorities could assess his political contacts. He said people who visited his office were arrested. On his application form he indicated he operated his business until May 2000 and kept his position as a soccer trainer with a national training institute until July 2000. The Tribunal was satisfied that he remained at the Soccer Institute and kept his office open until the dates he stated in his application form. It did not believe he would have been permitted to pursue his livelihood if he had been released on bail pending political charges. The Tribunal found it "odd" that he said he was released because the authorities had no evidence and yet still had to provide bail. 11 The applicant had said that in August 2000 he was issued with a passport obtained with the help of bribes. A DFAT delegate, however, had advised of the stringency of security checks regarding departure from Iran. Despite the applicant's claim he was of ongoing interest to the Basiji and security officials and was on bail and the subject of an outstanding court summons, he still obtained a passport and left the country unhindered. 12 The Tribunal accepted it was possible that the applicant was questioned after the Shush demonstration. However, that possibility was inconsistent with information from other sources. In the event the Tribunal was not satisfied that the applicant was detained and mistreated for ten days as claimed or that he was granted bail on the security of title deeds to property. It did not accept that he was summoned to appear in court just before his departure from Iran. In the Tribunal's view he continued his usual occupations after the demonstrations. He was able to obtain a passport and leave the country because he was of no adverse interest to Iranian authorities. The Tribunal was satisfied there had been no developments since his departure that would increase the likelihood of persecution were he to be returned to Iran. 13 In relation to his refugee sur place claim, the Tribunal noted that applications were confidential and that the applicant had obtained a genuine passport in Iran and left the country using that passport. He had no history of dissidence. In the circumstances the Tribunal concluded that there was not a real chance that the harm the applicant feared might be realised if he returned to Iran. Grounds for Review 14 The grounds for review were contained in a Minute of Proposed Amended Grounds of Review tendered at the adjourned hearing on 14 August 2001. The grounds were as follows: "1. Procedures that were required by the Migration Act 1958 (Cth) ("the Act") to be observed in connection with the making of the decision, namely the procedures contained in s 426(3) of the Act that the Tribunal must have regard to the wishes of an applicant in obtaining oral evidence from a person, were not observed (contrary to s 476(1)(a) of the Act). Particulars (a) The Applicant, in his Response to Hearing Invitation dated 15 February 2001, expressly indicated that he wished the Tribunal to take oral evidence from[T]. (b) The Applicant told the Tribunal on 26 February 2001 that he wished the Tribunal to take evidence from [T]. (Notwithstanding that the Applicant also referred the Tribunal to a letter written by [T] and said that his lawyer had said that that letter "would be enough".) (c) The Tribunal did not call [T] to give oral evidence. (d) There is no evidence or other material to suggest that the Tribunal had regard to the Applicant's wishes in obtaining evidence from [T]. 2. The Tribunal ignored relevant material, namely the nature or content (alternatively the foreshadowed content) of the evidence which the applicant wished to advance through the proposed witness [T], and thereby purported to make a decision that it did not have jurisdiction to make (contrary to s 476(1)(b) of the Act), further or alternatively made a decision that was not authorised by the Act (contrary to s 476(1)(c)), further or alternatively made an error of law (contrary to s 476(1)(e)). Particulars The particulars to paragraph 1 above are repeated. 3. The Tribunal made a finding concerning a critical fact, namely that a family member outside the applicant's direct family provided certain collateral to secure his release from custody, when there was no evidence of that fact, contrary to s 476(1)(g) of the Act. Particulars (a) The Applicant consistently told both the Respondent's delegate and, in turn, the Tribunal, that his release from custody was secured by his cousin. There was no want of "certainty" from the applicant on this factual issue. (b) Any "evidence or other material" suggesting that the Applicant's release was secured by a person other than his cousin existed only by reason of an inaccurate, alternatively incompetent, translation of the Applicant's account of material events. (c) The Tribunal assessed the Applicant's evidence, and otherwise made its findings of fact, on the basis that the Applicant had not been "certain" of the person who facilitated his release. 4. Procedures that were required by the Act to be observed in connection with the making of the decision, namely a procedure that the translation of the applicant's evidence occur in an accurate, alternatively competent, manner (to be implied from sections 420, 425(1)(a) of the Act) were not observed (contrary to s 476(1)(a) of the Act). Particulars The particulars to paragraph 3 above are repeated." Statutory Framework 15 Part 7 of the Migration Act 1958 (Cth) deals with the review of protection visa decisions. Division 4 deals with conduct of the review by the Refugee Review Tribunal. In conducting the review the Tribunal is empowered to get any information that it considers relevant (s 424(1)). This provision emphasises the inquisitorial nature of the Tribunal's processes. The Tribunal is required to invite an applicant for review of a protection visa decision to appear before it. This requirement does not apply if the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it or the applicant consents to the Tribunal deciding the review without the applicant appearing (s 425). The Tribunal is required to give the applicant notice of the day, time and place of the hearing (s 425A). Applicants may request the Tribunal to call witnesses. In this respect s 426 provides: "426(1) In the notice under section 425A, the Tribunal must notify the applicant: (a) that he or she is invited to appear before the Tribunal to give evidence; and (b) of the effect of subsection (2) of this section. (2) The applicant may, within 7 days after being notified under subsection (1), give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or persons named in the notice. (3) If the Tribunal is notified by an applicant under subsection (2), the Tribunal must have regard to the applicant's wishes but is not required to obtain evidence (orally or otherwise) from a person named in the applicant's notice." The Tribunal is empowered to take evidence on oath or affirmation. It is also empowered to require the Secretary of the Department to arrange for the making of any investigation that the Tribunal thinks necessary with respect to the review and to give to the Tribunal a report of that investigation or examination (s 427(1)). The Tribunal is also empowered to summon a person to appear before it to give evidence (s 427(3)(a)). 16 Grounds for review of Tribunal decisions are set out in s 476 which relevantly for present purposes reads: "476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed; … (c) that the decision was not authorised by this Act or the regulations; … (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 on the record of the decision; … (g) that there was no evidence or other material to justify the making of the decision. … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." Failure to Consider Calling a Witness 17 On 15 February 2001, the Tribunal sent to the applicant a notice advising that it had looked at all the material relating to his application but was not prepared to make a favourable decision on that information alone. The notice went on: "You, and any other persons listed above, are now invited to come to a hearing of the Tribunal to give oral evidence, and present arguments, in support of your claims. You are also entitled to ask the Tribunal to obtain oral evidence from another person or persons." 18 In a formal document entitled "Response to Hearing Invitation", which the applicant was asked in the letter of invitation to complete, he nominated "T" as a person he wanted to bring with him to the hearing as a friend. He was also asked if he wanted the Tribunal to take evidence from a witness. He nominated "T" as the witness. In answer to the question "What evidence will the witness give about your application?", there was written "whatever has to be needed the witness will tell". 19 In the course of the hearing before the Tribunal it was put to the applicant that his ability to stay in Shush and then leave on his own passport did not sit comfortably with his claims that he was a known dissident targeted by security authorities and the Basiji. The applicant responded that he had a friend who could testify on this: "…I have spoken to my lawyer about this and she said that there is no need for him to actually attend the session, so I have brought the letter that he has written" He was asked who his witness was and he said it was "T" who was at the Curtin Detention Centre with him. He went on: "When I spoke to my lawyer he said that this person actually can testify that I have had this problem and at the time of the demonstration I was there, and she said - or he said - that this letter would be enough but that if you want to talk to him directly I can ask them to actually provide this opportunity." (Transcript of proceedings before Tribunal as translated) The Tribunal member said he would arrange to get a copy of the letter faxed to him. 20 There is no reference to the letter in the Tribunal's decision. It appears that although it was sent to the Tribunal on 26 February it was not placed on the applicant's file until after the Tribunal's decision was given on 5 March. According to a memorandum on the file an incorrect spelling of the applicant's surname in the letter led to a delay in locating the actual file. 21 The letter was in the following terms (including spelling and grammatical errors): "I've been preaperd to give evidence as a witness who is awar of Mr CHARAGI stuatus in the city of Shoush as a owner or manager and Trainer in his football school and also computer institute. I've been practic football for two month in his football school myself and I got to know him there. But as the minister delegate in his decision did not have difficulty to belive wether he owned these institution or no. We feel is not the case and my witness will be regardless atlist the Tribunal have individual concern about his ownership of those institution. Anyway I am preaperd to give any written evidence in this respect if it is requierd." 22 The letter did not address the issue raised by the Tribunal whether the applicant participated in the demonstration as he claimed and whether he was able to remain in Shush. The Tribunal was on notice, however, that the applicant wanted it to hear from "T" about his participation in the demonstration. That was a matter potentially of some importance to the claim for a protection visa. The applicant relied upon his understanding of what his lawyer had told him about the sufficiency of "T"'s letter. There is no evidence of any inquiry by the Tribunal about the letter before it made its decision. The applicant was apparently under the incorrect impression that the letter would be relevant to his participation in the demonstration. He foreshadowed that that was a matter on which "T" could speak. He had given written notice of his desire to have "T" called as a witness to give oral evidence. But the Tribunal proceeded without seeing the letter. In my opinion, the Tribunal had a duty which has not been discharged, to consider the applicant's wishes to have "T"'s evidence before it one way or the other. Had it seen the letter, which plainly did not address the issue which the applicant believed it would address, it would have been necessary for it to have regard to the possibility that the applicant had misunderstood what the letter contained, it being written in the English language and whether, in the circumstances, his wish to have the witness called could still be regarded as operative. It needed to properly ascertain the applicant's wishes and have regard to them (s 426(3)). In the circumstances, in my opinion, the Tribunal failed to comply with the procedural duty of the kind contemplated by s 476(1)(a). The first ground of review is therefore made out. The matter should be remitted to the Tribunal for reconsideration having regard to the applicant's wish to have evidence from "T" put before it. That does not amount to a direction to the Tribunal to call "T" as a witness. It must, however, give proper attention to the requirements of s 426(3). The Tribunal's Findings About the Applicant's Release from Custody 23 Although it is not strictly necessary to do so, I will also consider the remaining grounds of review. In dealing with the applicant's claims about his release from police custody after ten days in February 2000, the Tribunal said: "In regard to his release, he stated that bail was posted by an uncle and then that it was posted by a distant relative and, still later, by a friend of a cousin. It is odd that he would not be certain of the person who facilitated his release by providing the deeds of a property for collateral, particularly as that person would, apparently, forfeit that property as a consequence of the Applicant's conduct after his release." 24 In the record of the initial interview with the applicant on 14 November 2000 there is no reference to anyone securing his release on bail. His application for a protection visa however, was supported by a statement prepared by solicitors Macpherson & Kelley in which it was said that: "After being detained for ten days in different prisons I was released after my uncle gave a guarantee to them. I was released on bail." This statement was dated 25 November 2000. It was in the English language. It was signed by the applicant and countersigned by an interpreter. The signing and countersigning clauses read as follows: "Signed by [the Applicant] after the same had been translated from English language to the Farsi (Persian) language. ……………………….. Applicant's signature I, Parichehr Farsi WA0376 am proficient in the English language and the Farsi (Persian) and have faithfully translated the contents of this statement to [the Applicant]. ………………… Interpreter's signature" 25 On 2 December, the applicant was interviewed by Mr Raymond Miopla, an officer of the Department of Immigration and Multicultural Affairs, in the presence of Ms Liz O'Hagan from the applicant's solicitors. An accredited interpreter from the Translation and Interpreting Service was present. The following exchange took place: MR MIOPLA: When - they took you away and they detained you from 10 days. THE INTERPRETER: Yes MR MIOPLA: And an uncle arranged for your release? THE INTERPRETER: "Uncle", did you say? MR MIOPLA: Yes THE INTERPRETER: Yes. He is not my first uncle. He is the uncle of my father but I call him uncle. MR MIOPLA: All right. And what was his name? [THE APPLICANT]: Ahmir THE INTERPRETER: Ahmir MR MIOPLA: And where does Ahmir live? THE INTERPRETER: Shush, the city of Shush. MR MIOPLA: So he's not really your uncle? THE INTERPRETER: No, he's - he's uncle - no. no. I'm sorry. I make a correction if I said earlier on, he is a cousin of my father, on my father's side. MR MIOPLA: That's all right. THE INTERPRETER: We Iranians, the cousin who is bigger than us we respect and we call them uncle. MR MIOPLA: Okay. How did he arrange your release? How did he do it? THE INTERPRETER: They deposited a deed, because he was working at Basar, city of Shush at his market and they are respected as people who work there, that is how he could manage. Because Shush is a small town most people know him. MR MIOPLA: Do you know what property he gave the deeds for? THE INTERPRETER: It was a house. MR MIOPLA: Did he get the deeds back once you were released? THE INTERPRETER: He had - when I was released that deed was put there as a security." 26 The transcript of the interview was not before the Tribunal. It did, however, have the delegate's reasons for decision which provided a second hand account of what was said: "The applicant claimed that he had been released following an uncle offering deeds to property as a guarantee for his bail. When questioned earlier, the applicant stated that he had 2 uncles, one of which was a labourer, and another a driver, neither of whom offered property deeds for his release from custody, this was apparently arranged by another man called Amir, who he merely referred to as uncle." 27 In his solicitor's submission to the Tribunal, the short statement was made that: "The applicant was then taken into custody and brought to the Information Centre of the Security Forces where he was detained for 10 days and beaten very badly. The applicant was released after his uncle bailed him out." 28 In his evidence before the Tribunal the applicant was asked why he was released after ten days if the security forces thought he were some sort of dissident. He said: "I did explain it later, I had a cousin who was in the bazaar of Shush. And through his friends with guarantee and putting their actually total of their house they freed me. After I was free then they told me that they no - condition you're allowed to teach at the training centre of soccer club. And you're not eligible to work." (sic) This was the only reference to the arrangement for his release. 29 The applicant gave evidence to the Court on the hearing of his application for review of the Tribunal's decision. He said his release from custody had been secured by a cousin, the son of his father's brother. He said it is a tradition of the region in which he lives in Iran that very senior cousins within the family are referred to as "uncle" as a sign of respect. The Persian word to describe a cousin is "pessar amoo". If the cousin is very senior, the word "pessar" is dropped. The word "amoo" literally means an uncle from the father's side. In giving his account of events to the Departmental representative he said that he had said several times that it was his cousin who had secured his release from custody. He used the word "amoo" to designate his cousin. Before the Tribunal he also used the word "amoo" to describe his cousin. He said he explained at the Tribunal why he was using that word. The transcript of proceedings before the Tribunal however do not disclose any such explanation. 30 In cross-examination on his evidence-in-chief in this Court, which was given by swearing to the contents of an unsworn affidavit, the applicant was asked about his statement to the Tribunal. He said: "… I never said "his friends." The person who helped him, he was - he had - he knew him. He was a authority that he knew but it wasn't his friend and through my cousin I was freed." (T32) The applicant told the Court that the reference to "friend" was incorrect. It should have been a reference to his "cousins". He agreed that he had acknowledged to the Tribunal that he could understand the interpreter. As he pointed out, however, he had no idea how the interpreter was reading his answers into English. The cross-examination did not advance the matter much one way or the other. 31 Counsel for the applicant submitted that any apparent lack of certainty or inconsistency perceived by the Tribunal on this issue arose from imprecision or inaccuracy in the translation before it. I was asked to conclude that the applicant was a witness of the truth in this Court and that he had only ever told anyone at departmental level and before the Tribunal that it was his cousin who secured his release. 32 In terms of the ground of review relied upon I was asked to find, as a matter of fact, that an inconsistency or uncertainty in his evidence found by the Tribunal was only apparent and not real and that the Tribunal had, in finding it existed, made a finding as to a particular fact which did not exist. 33 Assuming for the sake of argument that the applicant has only ever referred to a cousin as arranging for his release and that there was no uncertainty or inconsistency in his evidence in this respect, there is still a question whether the inconsistency said to have been found was a particular fact which did not exist. And assuming that it did fall into that category, the question remains whether the Tribunal based its decision upon the existence of that inconsistency. The further question was whether "…there was no evidence or other material to justify the making of the decision". This requires a consideration of the role of the "particular fact" and whether it was a fact which was critical to that outcome. 34 The Tribunal dealt with the issue somewhat obliquely. It described as "odd" the fact that the applicant was not certain of the person who facilitated his release. This oblique form of finding, which is not explicitly linked one way or the other to the outcome, is not particularly helpful. It hints at a line of reasoning without exposing it and thus reduces the transparency of the Tribunal's decision-making. If it is merely editorial comment on background fact, it risks raising false issues for review as it appears to have done in this case. For the Tribunal's decision, in my opinion, did not turn upon the impugned observation. It turned on positive findings about the continuance of the applicant's work at his computer centre and with the Soccer Institution beyond the time of the demonstration up to the dates which were specified on his application form. It also turned on the unlikelihood that anyone, not in the applicant's direct family, would provide security for his release. The Tribunal also evidently regarded it as improbable that the authorities would have released him in circumstances in which they had no evidence and yet would still impose bail. 35 The Tribunal did not accept that he had been summoned to appear in court just before his departure and weighed in the balance against him that he had been able to obtain a passport. It concluded that he was able to continue his usual occupations, obtain a passport and leave the country, because he was of no adverse interest to the Iranian authorities. It also had regard to his absence of any history of dissidence. It also rejected the suggestion that he participated or was alleged to have participated in a demonstration in Shush in which six people died and over seventy were injured. These are findings of fact which support the Tribunal's ultimate decision. It is plain from them that the observation about the inconsistency concerning the identity of the person who arranged for his release from detention was not critical to the final decision. This being so, the third ground of review fails. Incompetent Translation 36 Having regard to the findings that I have made in relation to the third ground of review, nothing turns on the fourth relating to the competency of the translation of the evidence and that ground also fails. Conclusion 37 For the preceding reasons, the application succeeds in relation to the first ground. The matter will be remitted to the Tribunal for reconsideration having regard to its duty under s 426(3) of the Act.