WACO v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-08-15|Before: French J, Carr JJ

REASONS FOR JUDGMENT THE COURT: 1 The appellant appeals from a decision of a judge of this Court (French J) dismissing an application for judicial review by issue of prerogative writs pursuant to s 39B of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal ('the Tribunal'). The Tribunal, acting on an application for review of a decision of a delegate of the respondent Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), affirmed the delegate's decision not to grant to the appellant a protection visa. 2 The appellant is a citizen of Iran. He arrived in Australia on 20 June 2000 and applied for a protection (class XA) visa on 28 February 2001. On 9 April 2001 the delegate of the Minister refused his application. The appellant lodged an application for a review of the decision of the delegate on 10 April 2001, and the Tribunal heard the application on 30 May 2001. 3 It is a criterion for the grant of a protection visa that the Minister, or, in the event of a review of his decision by the Tribunal, the Tribunal, be satisfied that the appellant is a person to whom Australia owes protection obligations. Generally speaking, it may be said that Australia owes protection obligations to a person who falls within the definition of a 'refugee' in the Convention relating to the Status of Refugees, done at Geneva on 28 July 1951, as affected by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967 ('the Convention'). 4 Article 1(A)(2) of the Convention provides that a refugee is a person who: 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;…' 5 The appellant at his post arrival interview on 29 June 2000 claimed to seek refuge 'mainly because of the development of my career and the fact that I want to be a useful citizen, and pride for the community. I had heard that Canada is good for my job however I chose Australia because of the type of work I want to do the necessary facilities for my profession is available.' He had been pursuing a profession as a jewellery maker. However, he claimed that the Iranian government was impeding the success of his business due to what he perceived to be its poor relations with other countries and restrictive practices. He gave the example of the 10 day closure of his shop (and 1,000,000 tomans fine) after the Morals Police noticed a customer taking off her scarf to try on a necklace in 1998. He also claimed that his social life was limited. He and a girl he had loved had wanted to live together but their parents and society would not permit it. He decided to leave Iran two days after the authorities threatened to take away a satellite dish, films and CDs he owned if he did not pack them away. However, there was no suggestion of on going persecution in relation to any of these incidents. When asked whether he had any reasons for not wishing to return to Iran, he said: 'There is no reason that I cannot go back. If I go back nothing will happen, but I came here for the reasons I mentioned.' 6 However, in his application for a protection visa the appellant provided a statement in which he claimed to fear persecution on return to Iran for reasons of religion and political opinion against the Iranian Government and the Islamic leadership in Iran. This fear arose, he claimed as a result of his association with the Ayatollah Sayed Mohammad Shirazi, a reformist cleric, and because he had printed and distributed anti-regime leaflets in a mosque detailing correspondence between the Supreme Leader Ayatollah Khamenei and a cleric named Allameh Jafarri. The leaflets had also included criticism of the Supreme Leader and a declaration that Allameh Jafarri was killed by the Supreme Leader after a dispute between them over the Supreme Leader's scholarly credentials. The appellant stated that the reason he had not provided this information at his post arrival interview was because he was afraid that it would create problems for him after an Australian 'sea guard' told him that Iran and Australia were on good terms and that the appellant would likely be deported back to Iran. 7 According to the information contained in the appellant's application for a protection visa he had first felt oppressed by the Iranian authorities in 1996 when he was allegedly detained after an angry outburst against the government and its leader at the locale of the Foundation of the Martyrs of the Islamic Revolution ('the Foundation'). He claimed that his family had applied for a certificate to conduct an air-ticketing agency. Priority for such certificates was given to the families of Martyrs who had died in battle for Iran. The family claim was based on the belief that one of his uncles was a Martyred soldier in the Iran-Iraq war. Contrary to this belief, the file held by the Foundation relating to the uncle recorded that the uncle had committed suicide in battle. The appellant allegedly started to shout, and was detained by Internal Security. He was then sent to a police station after Internal Security 'realised that what I was saying was right.' He was detained for six days and nights and released at the end of that period without explanation. 8 The appellant stated that after completing his military service he had become a professional jeweller and had attended religious classes known as 'Hozeh' in the city of Qom. The classes were conducted by Allameh Mohammad Taghi Jafarri and it was while he attended the classes that he became acquainted with the Ayatollah Shirazi. The appellant had private meetings with Jafarri because the appellant's grandfather was a well-known religious figure. However, Jafarri died in autumn 1998 under circumstances considered to be suspicious by the appellant and some of the other students. Before they could approach Jafarri's physician in the winter of 1998, they learnt that the physician and his wife had been stabbed to death. Further inquiries uncovered the fact that Jafarri had been in conflict with the Supreme Leader. The Supreme Leader had wanted Jafarri to indicate his approval of a religious tract he had written, but Jafarri declined. With the help of the Ayatollah Shirazi the appellant and some of the other students obtained a copy of the correspondence between Jafarri and the Supreme Leader which detailed the doctrinal conflict regarding the tract. The Ayatollah Shirazi was subsequently arrested, but later released under some constraints. 9 At the beginning of 1999 the appellant and four other students were taken off a bus travelling to Tehran by the security forces. The appellant said he was questioned about his association with the Hozeh and with the Ayatollah Shirazi. He said he was tortured and detained for three months and released only after signing an undertaking not to leave Tehran for a year and to present himself to a security unit every month. 10 In March 2000 Hozeh classes reopened. The appellant and some of the other students sought to publicise the reason behind Jafarri's death. The appellant claimed to have made 500 copies of a leaflet which contained the Supreme Leader's letter, Jafarri's answer to the letter and the students' own opinions on the matter. The students planned to attend a mosque in Qom where they knew a religious ceremony was to be held. According to the appellant, he was able to procure a key to the roof of the mosque from the janitor, whom he knew, and have that key copied. The appellant and some of the other students released the leaflets from the roof of the mosque once the ceremony had started and shouted that the scholar Jafarri had been murdered by the regime. He used a rope to climb down from the roof and ran to a waiting car driven by another student. One of his friends was apprehended. The appellant hid at the house of his mother's cousin. The appellant claimed that his father was subsequently arrested and the apprehended friend died mysteriously in a motorbike accident despite not knowing how to ride a motorbike. He and the other students who were involved in the leaflet drop were told by the Ayatollah Shirazi to leave the country, and that he would be able to help them do so as he had a follower who worked at the airport. 11 The appellant claimed to have left Iran using his cousin's passport. He said that the cousin's age and appearance was similar to his own. He claimed to have been assisted by an uncle who worked in the customs department as well as by followers of the Ayatollah Shirazi from the security department of the airline. They contrived his departure in such a manner that the security police granted him an exit stamp at the airport security gate. He destroyed the passport on the advice of a people smuggler in Indonesia. 12 The appellant gave evidence at the Tribunal hearing on 30 May 2001, where he was represented by an advisor. He called no witnesses. The appellant's claims of fear of persecution on the basis of religious and political opinion against the Iranian Government and the Islamic leadership in Iran were discussed with the Tribunal member. In a segment of the transcript of the Tribunal hearing provided to the Court by the appellant, it is clear that the Tribunal expressed scepticism of the nature and extent (if any) of the appellant's relationship with Ayatollah Shirazi and Jafarri, which in effect went to the foundation of the appellant's claim for refugee status. The appellant's advisor obtained permission and subsequently provided further information to support the appellant's claims on 4 July 2001, including two letters in Arabic. 13 After a letter from the Tribunal inquiring whether the appellant would be providing any further information, the appellant's advisors on 7 November 2001 provided translated copies of the two letters and a copy of the birth certificate of the cousin on whose passport he allegedly left the country. The first letter purported to be from the Ayatollah Shirazi to the appellant's father. It thanked him for raising a son who had sacrificed himself to preserve the true meaning of the Koran. The second letter from Mr Azizollah Vahdati, the Head of the Notary of Public Office in Tehran, testified to the appellant's relationship with the Ayatollah Shirazi. Both letters if accepted as genuine corroborated a critical element of the appellant's claim. The advisors also indicated that the appellant was unable to furnish any further proof of his relationship with Ayatollah Shirazi. The Tribunal's Decision 14 The Tribunal's decision was handed down on 9 November 2001. It found that the appellant did not have a genuine fear of persecution and that there was not a real chance that the appellant would face persecution upon his return to Iran. 15 In particular, the Tribunal did not accept the appellant's account of the nature and extent of the appellant's relationship with Ayatollah Shirazi. The Tribunal was not satisfied that the appellant was a follower of Ayatollah Shirazi, or had a close relationship with the Ayatollah Shirazi or Dr Jafarri or even that he had attended the Ayatollah Shirazi's religious school at Qom. 16 The Tribunal concluded that several aspects of the appellant's claims were implausible and that he was not a credible witness 'in respect of key aspects of his claims for protection.' The Tribunal said: 'He was not an impressive witness in giving consistent and cohesive testimony about matters which he professed to have some close familiarity. He conveniently varied his evidence, including very subtly on occasions, to answer the Tribunal's concerns with certain key aspects of his claims. He clearly had difficulty providing convincing explanations on issues on which the Tribunal expected straightforward, informed responses. He was also generally unsatisfactory in testifying about the circumstances that he claims led to him departing Iran as a fugitive and in respect of how he managed his exit from Iran. He was also hesitant, unconvincing and shifted ground too readily in answering concerns about his actions and objectives in seeking to attack the clerical leadership.' 17 This finding on the appellant's credit was based on his inability to satisfy the Tribunal of the course of events which precipitated the anti-regime leaflet dropping episode, and the episode itself. The Tribunal considered the appellant's account of this incident to be 'highly implausible and [had] no hesitation in rejecting it' on the basis of the appellant's lack of ability to satisfy the Tribunal in relation to inconsistencies between the appellant's account at the hearing and in his application, and why such a means of distributing the leaflets was chosen at all. 18 The Tribunal also appeared to place substantial weight on what it described as unconvincing evidence relating to the nature and extent of Ayatollah Shirazi's house arrest, in particular in relation to when the Ayatollah was placed under house arrest, and whether the Ayatollah was able to receive visitors and teach during this period. The Tribunal observed that during his taped interview with the delegate, the appellant had exhibited a lack of awareness that the Ayatollah Shirazi had been placed under house arrest in 1996. It also noted that he told the department that the Ayatollah Shirazi taught him occasionally at his religious school in Tehran at a time when the Ayatollah was under house arrest, and that the appellant claimed that he and Ayatollah Shirazi had gone to see a Dr Kadivar at a time when the Ayatollah was supposedly under house arrest. 19 In relation to the two letters provided as corroborative evidence of the appellant's account the Tribunal stated: 'The Tribunal has closely examined and considered the translations …[in] view of the Tribunal's firm findings against the Applicant in respect his [sic] religious association with Ayatollah Shirazi, the Tribunal is not prepared to accept either of these documents as genuine…the Tribunal is not satisfied that the contents of the letters…regarding [the Applicant's] claimed status as a follower and a close associate of Ayatollah Shirazi are genuine and finds that they have been prepared to seek to bolster his claims'. 20 It was common ground that at no time did the Tribunal give any indication to the appellant that it doubted the genuineness of the letters, nor did the Tribunal at any time invite the appellant to comment on whether they were. 21 The Tribunal also rejected the appellant's evidence regarding alleged telephone contact with his family in Iran after his arrival in Australia. The lack of any evidence of pressure being brought to bear on his family members was a further strong indication to the Tribunal, having regard to the country information, that the appellant was of no interest to Iranian authorities. The Tribunal also did not accept as plausible the various explanations offered by the appellant for the difference in his claims at the post arrival interview and in his later application for the protection visa.

Reasons for Judgment of the Primary Judge 22 The reasons of the learned primary Judge were handed down after the decision of five Judges of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. The reasons and the final argument of the parties consequently reflected the view of the interrelationship between s 474 of the Migration Act 1958 (Cth) and s 39B of the Judiciary Act 1903 (Cth) approved in NAAV. However, the view that s 474 precluded judicial review except in a case which fell within one of the three provisos referred to in the judgment of Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 espoused in NAAV is inconsistent with the reasons delivered by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 and it was common ground between the parties that NAAV was no longer to be regarded as good law: SBBG v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 281 per Gray, von Doussa and Selway JJ at [19]; SDAV v Minister for Immigration & Multicultural & Indigenous Affairs, Minister for Immigration & Multicultural & Indigenous Affairs v SBBK (2003) 199 ALR 43 per Hill, Branson and Stone JJ at [34]). 23 The primary Judge rejected an argument that the Tribunal's decision was made in bad faith. In his Honour's view the argument impermissibly sought to have the Court embark upon a merits review of the facts before the Tribunal. 24 His Honour also rejected the submission that the Tribunal was obliged, pursuant to s 424A of the Act, to put to the appellant information concerning the Ayatollah Shiraz's house arrest. It was said that because the Tribunal's understanding of 'house arrest' was not shared by the appellant and not put to the appellant, there being no equivalent expression in the Farsi language, there was a failure to comply with s 424A of the Act and a failure to accord the appellant procedural fairness. 25 His Honour also rejected a submission that there was a failure to take into account a relevant consideration or that the Tribunal had taken into account irrelevant considerations. It was argued that proceeding on the basis that it did with respect to the question of 'house arrest' the Tribunal had ignored relevant material and had taken into account irrelevant material so that there had been a jurisdictional error that made the privative clause a nullity. The primary Judge did not consider this ground to be established on the facts even if the argument was available as a ground of judicial review and not precluded by s 474 and the authority of NAAV. 26 The appellant's application was consequently dismissed. The Grounds of Appeal before the Full Court 27 The appellant was represented before us by pro bono counsel. Three matters were relied upon in support of the application. In summary, these three grounds were that the primary judge erred in law by not finding that: (1) The appellant was denied natural justice and procedural fairness by the Tribunal when it did not give the appellant an opportunity to be heard on:- a. The Tribunal's understanding of the notion of house arrest, b. Inconsistencies perceived by the Tribunal to exist between the appellant's evidence and the information that the Ayatollah Shirazi was under house arrest as understood by the Tribunal, and c. The Tribunal ignored the appellant's consistent evidence concerning Ayatollah Shirazi. (2) The Tribunal failed to take relevant material into account and took irrelevant material into account. (3) Difficulties with interpretation before the Tribunal resulted in the appellant not being able to give his evidence in accordance with s 425 of the Migration Act 1958 (Cth). At the hearing before the Full Bench of the Federal Court, the appellant sought and was granted leave to add a further ground of appeal to ground (1), namely that the Tribunal failed to give the appellant the opportunity to be heard on whether the two letters provided by him after the hearing but before the Tribunal published its reasons were genuine. The respondent was provided with the opportunity to make further submissions by 6 June 2003. On that day the respondent's solicitors notified the Court that they did not wish to file any further submissions.

Did a Denial of Natural Justice Occur? 28 The judgment of the primary judge was handed down before the decision of the High Court in Plaintiff S157/2002 was delivered. That case held that the privative clause provisions of s 474 did not operate to preclude the High Court from exercising its Constitutional jurisdiction to hear applications for certain prerogative writs because a decision of the Tribunal affected by jurisdictional error was not a decision made under the Act, but rather no decision at all. The case further made clear that a failure of the Tribunal to afford an appellant procedural fairness (or as it is often called a failure to afford natural justice) was a jurisdictional error. 29 Subsequent to the decision in Plaintiff S157/2002 Full Courts of this Court have held that the same is true of this Court's jurisdiction arising under s 39B of the Judiciary Act 1903, with the consequence that the privative clause provisions of s 474 will not preclude this Court from giving relief and setting aside the decision of the Tribunal where that decision is affected by a jurisdictional error, such as a failure on the part of the Tribunal to afford the appellant procedural fairness: SBBG; SDAV. So much is common ground between the parties. It follows that the question on appeal is whether the Tribunal made a jurisdictional error. 30 The appellant was therefore granted leave to argue that he was denied natural justice or procedural fairness notwithstanding that this argument before the learned primary Judge had not proceeded on this basis. It is necessary now to consider this argument which was advanced in three different ways.

A. Did the Tribunal deny the appellant an opportunity to be heard in relation to the notion of 'house arrest'? 31 The appellant contends that he was denied natural justice by the Tribunal when it failed to give him an opportunity to be heard on its understanding of house arrest. 32 In support of this submission the appellant tendered a portion of the transcript of the Tribunal hearing, which indicated that the translator had told the Tribunal that there was no word or phrase in Farsi which precisely corresponded to 'house arrest'. The translator had instead translated this as 'he was under control… or being observed, at his home.' The appellant argued that it was uncertain whether the translator has used the word 'observed' or 'controlled' at critical moments before the Tribunal, which together with the inherent ambiguity of the word 'house arrest' created a lack of clarity on a crucial issue. The failure to resolve this lack of clarity by the Tribunal according to the appellant resulted in a denial of natural justice as the appellant was denied an effective opportunity to put his evidence before and be understood by the Tribunal. 33 The Tribunal must give the appellant an opportunity to appear before it and give evidence: s 425 of the Act. If an appellant seeks to give evidence, the Tribunal is under a duty to raise plainly and unambiguously the critical issues on which his or her application might depend so that he or she may have an opportunity of being heard on them: Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 388 (per Merkel J) and see 382 (per Einfeld J) and 383 (per von Doussa J); Hussein v Minister for Immigration & Multicultural Affairs [1999] FCA 288 at [29]-[30] per O'Connor, Tamberlin and Mansfield JJ. 34 Whilst the question of whether the Ayatollah Shirazi was under house arrest and the nature of that house arrest may have been a critical issue in relation to the appellant's credit, there was no lack of clarity as alleged. With respect to the appellant's submission, when the extract from the transcript is read in its entirety it shows that the Tribunal and the appellant did not operate on a dissimilar concept of house arrest. The appellant has acknowledged that he was told by the interpreter that the Ayatollah Shirazi was under control and surveillance at his home. This is arguably a quite workable definition of the ordinary English meaning of the words 'house arrest'. The Macquarie Dictionary, for instance, defines 'house arrest' as 'confinement to one's place of residency (by an authority)'. The transcript shows that the appellant was given an opportunity to comment on the nature of that house arrest, namely whether or not the Ayatollah Shirazi could receive visitors and teach whilst he was under house arrest. No denial of natural justice occurred.

B. Did the Tribunal deny the appellant an opportunity to be heard in relation to inconsistencies between his evidence and the Tribunal's notion of house arrest? 35 An alternative, but related argument raised was that the Tribunal should have raised with the appellant the inconsistencies between the appellant's evidence and the Tribunal's notion of house arrest and allow the appellant to comment on it. 36 Given that the Tribunal's notion of house arrest was not so dissimilar to that of the appellant as to require an opportunity to be afforded to the appellant to explain what he understood house arrest to be it is difficult to see that the Tribunal was under a duty to raise the inconsistencies in the appellant's evidence regarding the time and the nature of the house arrest of the Ayatollah Shirazi. The transcript shows that the Tribunal member in fact plainly and unambiguously raised inter alia the question when the Ayatollah Shirazi had been placed under house arrest after the appellant had stipulated a date inconsistent with the country information. The Tribunal also raised with the appellant the question whether the Ayatollah was allowed to teach and receive students during his period of house arrest. The Tribunal also indicated, directly after house arrest had been discussed, that on the basis of the evidence provided by the appellant he was not satisfied that the appellant had the claimed relationship with the Ayatollah Shirazi. The appellant consequently offered, and was allowed to provide further documents potentially evidencing this relationship. Accordingly the submission that the appellant was not given an opportunity to be heard in relation to inconsistencies between his evidence on the one hand and the fact of Ayatollah Shirazi's house arrest must fail.

C. Did the Tribunal fail to allow the appellant an opportunity to be heard by ignoring the consistent evidence he gave on the Ayatollah Shirazi's house arrest? 37 The appellant submits that he was denied an opportunity to be heard because the Tribunal characterised the evidence he gave on the Ayatollah Shirazi's house arrest as inconsistent, where as it was submitted the evidence of the appellant was consistent. With respect to the appellant's submission, the transcript and the reasons of the Tribunal do not show that the Tribunal failed to listen to the appellant's evidence, but merely show that it drew unfavorable conclusions regarding it. The appellant's submission in this respect is therefore merely an invitation for the Court to engage in merits review of the weight the Tribunal placed on the appellant's evidence concerning this aspect of his application. The Court is not authorised to do so.

D. Did the Tribunal deny the appellant an opportunity to be heard on the genuineness of the letters? 38 At the hearing the Tribunal member indicated that he would be unlikely to accept the claimed close relationship with Ayatolla Shirazi on the evidence which was then before the Tribunal. The appellant then indicated that he could provide documentary material supporting his claims. There was subsequently provided additional information including the translation of a personal letter purporting to be from Ayatollah Shirazi and of a letter from Mr Azizollah Vahdati, the Head of the Notary of Public Office in Tehran. 39 These letters were central to the appellant's claim in so far as they were tendered as evidence of his relationship with the Ayatollah Shirazi. However, in its reasons the Tribunal stated: '[in] view of the Tribunal's firm findings against the Applicant in respect his religious association with Ayatollah Shirazi, the Tribunal is not prepared to accept either of these documents as genuine…the Tribunal is not satisfied that the contents of the letters…regarding [the Applicant's] claimed status as a follower and a close associate of Ayatollah Shirazi are genuine and finds that they have been prepared to seek to bolster his claims'. 40 It was, as already noted, common ground that at no time did the Tribunal indicate to the appellant that there was any question of the authenticity of the letters or that they were not genuine so as to give the appellant the opportunity, should he wish, to comment on their authenticity or call evidence that the letters were in fact genuine, for example, evidence of a handwriting expert familiar with the handwriting of the writers of them. 41 A finding that documents are not genuine might, in a particular case, depend upon factors external to the documents. Direct evidence that a document is a forgery will not always be necessary: Minister for Immigration & Multicultural Affairs v Djalal (1998) 51 ALD 567. It would not involve an error of law for the Tribunal to reject corroborative evidence on the basis of its view of an appellant's credit: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]. 42 The question raised here is whether the Tribunal was entitled to reject a document which on its face was genuine without giving the party which tendered it an opportunity to comment upon the genuineness of the document or to call evidence supporting its genuineness. An administrative tribunal undertaking an inquisitorial function is not obliged to put to an appellant an assertion of apparent falsity or unreliability in respect of each and every matter raised by the appellant for the appellant's comment (Abebe v Commonwealth of Australia (1999) 162 ALR 1 per Callinan J at 76). However, the tribunal will have a duty to raise clearly with the appellant the critical issues on which his or her application might depend. It is clear that the question whether the letters were genuine was a matter which went directly to the most critical issue in the case, namely the appellant's relationship with Ayatollah Shirazi. It was upon this relationship that the claim that the appellant had a well-founded fear of persecution for a convention reason rested. 43 In the broadest sense procedural fairness requires that an administrative tribunal is bound to hear a person affected by its decision before exercising its powers: FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360 per Mason J. Underlying it is the entitlement of the person to know the case sought to be made against him or her and to be given the opportunity of replying to it: Kioa v West (1985) 159 CLR 550 at 582. As Mason J pointed out in that case at 583, 'natural justice and fairness are to be equated'. Whether procedural fairness must be afforded and the content of it will, where the decision made arises in a statutory framework depend upon the legislation pursuant to which the decision is to be made and all the circumstances of the case. 44 In a passage often quoted Mason J in Kioa v West said at 585: 'In this respect the expression 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, ie in accordance with the procedures that are fair to the individual considered in the light of the statutory requirements, the interest of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations..' 45 So, in Kioa v West it was held that where the decision maker had formed a view that Mr Kioa's concern with illegal Tongan immigrants who were seeking to circumvent Australia's immigration laws was a source of concern fairness required that the appellant be given the opportunity to reply to it. 46 Generally where it is clear that factual matters are in dispute it will not be necessary for the decision maker to indicate to the person affected that the decision maker is likely to reach an adverse conclusion. Where the decision maker intends to reject an application for some reason which is personal to the appellant, for example, the appellant's age, it may be necessary to give notice to the appellant that the decision maker has formed a view adverse to the appellant so as to afford the appellant the opportunity to put to the decision maker arguments or evidence to the contrary, cf In re HK (An Infant) [1967] 2 QB 617 referred to by Mason J in Kioa v West at 587. Whether it is so will depend upon fairness. There would be no unfairness where the person affected knew what he was required to prove to the decision maker and was given the opportunity to do so. An appellant then cannot complain if his application is rejected because the decision maker, without notice to him has rejected what was put forward. 47 In Meadows two letters were tendered as part of the appellants' case before the Tribunal for a protection visa. The Tribunal concluded that the letters had been fabricated for the purpose of supporting the applications. However, the Tribunal did not convey this to the appellants. To the contrary, the appellants were in fact told during the hearing that the Tribunal was 'not accusing [them] of anything' in relation to the letters. 48 Von Doussa J said at 383:- 'Proceedings before the Tribunal are, of course, not adversarial, but the same notion of basic fairness that underlies the rule in Brown v Dunn required that the Tribunal before making a finding of dishonesty that would be destructive to the appellants'case, give to the appellantsthe opportunity to address that issue in their evidence.' Similar views were expressed by Einfeld and Merkel JJ at 382 and 388 respectively. 49 However, in Cong Tam Dang v Minister for Immigration & Multicultural Affairs, (2000) 61 ALD 29, Meadows was distinguished. In that case the Tribunal rejected the evidence of a psychologist finding that the appellant had 'put one over' the psychologist whose report went to a critical issue in the case, namely whether there was a risk of recidivism. It was held that the fact that the Tribunal had neither indicated to the psychologist nor to the appellant that it was of the view the appellant had fabricated the account of events provided to and accepted by the psychologist did not result in a denial of natural justice. Matthews J (with whom Drummond and Mansfield JJ agreed) stated at [92]:- 'The appellant was cross-examined at length before the Tribunal in a manner which clearly indicated that the respondent did not accept his version of events … given the course of the appellant's previous cross-examination, it would have been perfectly evident to the appellant and his representatives that [the psychologist's] conclusions were likely to be challenged on this basis.' 50 The appellant in the present case was left in no uncertainty that the Tribunal did not on the evidence before it at the conclusion of the appellant's case accept the appellant's version of events. The Tribunal said:- 'I have difficulty that there was this relationship with Ayatollah Shirazi and I have to put it to you that at this stage I don't see that the authorities would have been interested in you, that Ayatollah Shirazi would have had a relationship with you.' The appellant replied that he could obtain documentary proof. 51 The question is whether in these circumstances there is a denial of procedural fairness if the Tribunal takes a negative view of the genuineness of documents thereafter produced where the appellant has been put on notice that the Tribunal is not satisfied that the evidence given by the appellant is credible. Was the Tribunal's finding of fact that the documents in question were not genuine unfair? 52 Cong Tam Dang is of little assistance. Obviously the report of the psychologist depended upon the account the psychologist was given by the appellant. That is to say the credibility of the report was dependent wholly upon the credibility of the appellant. The rule that it is necessary to put a matter to a witness before it is fair to conclude to the contrary of the witnesses' evidence, generally referred to as the rule in Brown v Dunn whether or not but an example of the application of principles of procedural fairness will not apply where it is evident that the subject matter of the evidence is in dispute: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation (1983) 44 ALR 607. That is the explanation for the decision in Cong Tam Dang. The psychologist's evidence turned wholly upon it being accepted that what the appellant had told the psychologist was true. 53 In the present case and in Meadows the question whether the letters were genuine did not directly depend upon the evidence of the appellant. However, it can be said that a finding that the letters were forgeries could turn upon the credit of the appellant in so far as the finding is that the letters have been concocted by the appellant to advance his case. But if this is the case fairness would require that before a finding of forgery is made the person so accused be given the opportunity of answering it. A finding of forgery, just like a finding of fraud is not one that should lightly be made. Both involve serious allegations. Forgery, indeed, is a criminal offence. 54 Where the finding of fact made does not turn upon the credibility of the appellant and where there is nothing on the face of the documents themselves to alert the decision maker that they are forgeries it is likewise inherently unfair that the decision maker conclude that they are not genuine without affording the person affected by that conclusion the opportunity of dealing with it. 55 Nothing in our mind turns here upon the fact that the oral hearing had been concluded before the letters were procured and forwarded to the Tribunal. The Tribunal could easily have relisted the matter and have arranged for the appellant to be apprised of its doubts as to the authenticity of the letters and be given the opportunity to comment upon those doubts and call, if possible, evidence to the contrary 56 It may be possible to argue, however, that the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 77 ALJR 699suggests that the appellant be required to demonstrate that he was able to call evidence going to the genuineness of the letters before the Tribunal can be held to have denied to him natural justice. In our view it does not. 57 Lam was a case where the appellant had argued that the failure of the Minister to inform him that the Minister was not going to contact the guardian of his children to comment upon the possible deportation of the appellant was a denial of procedural fairness where the relationship between the appellant and the children was a relevant question in the case and where there was correspondence which created an expectation in the appellant that the guardian would be contacted. It was held by the High Court that in the circumstances of the case concern was not with the fairness of the procedure adopted but with the fairness of the decision and that there had been no breach of the rules of natural justice. The case was one where it was alleged there had been a representation made to the appellant that the guardian of the children would be notified when in fact he had not been. However, there could be no unfairness in a case where it was immaterial whether the representation was made or not because there was no suggestion that the representation was ever relied upon. Had the appellant in fact relied upon the representation the result may have been different. It is important to note that the High Court did not suggest that it would be necessary for the appellant to succeed that he prove also that had the guardian in fact been questioned his evidence would have supported the case of the appellant. What was critical was that the appellant never said that he relied upon that representation. The case is distinguishable from cases such as Kioa v West (1985) 159 CLR 550 where the denial of procedural fairness arises because the appellant is not given the chance to answer the case put against him. 58 The comments of Gleeson CJ at [36] - [38] and particularly his Honour's reference to 'practical injustice' must be read in the light of the facts of the case. Particularly we do not understand his Honour to be saying that it is necessary in each case where denial of natural justice is alleged that the person claiming not to have been given an opportunity to put his or her case lead evidence to show that had the opportunity been given it would make a difference to the outcome. There can be a denial of natural justice where a decision maker makes a finding on an important issue in a case without notice that the issue is the subject of any dispute and where the party affected adversely by that finding is not given an opportunity to be heard. That is because so to do will itself be unfair. It will not be necessary for the party alleging unfairness to put before the court the evidence which he would have presented had there not been a miscarriage of justice. It is sufficient in such a case that the party has not been afforded an opportunity to put his or her case. Only where the case is one where it can be shown that the appellant could not, even if given the opportunity to do so, affect the outcome would it be held that there was no denial of procedural fairness. If the possibility exists that the appellant, if given the opportunity might be able to make submissions or call evidence which could affect the outcome the appellant will not fail merely because the appellant has not proved that the submissions or evidence would affect the outcome.

Did the Tribunal fail to take into account relevant considerations or take irrelevant considerations into account 59 It was submitted on behalf of the appellant that the Tribunal made a jurisdictional error by taking into account irrelevant considerations, those being the inconsistencies in the appellant's evidence regarding house arrest. Alternatively, it was submitted that in failing to take into account the appellant's version of house arrest, and consequently his consistent evidence regarding it, the Tribunal failed to take a relevant consideration into account. 60 It may, for present purposes, be accepted that a Tribunal may make a jurisdictional error if it takes into account irrelevant considerations or fails to take into account relevant considerations, although there have been some suggestions that this is not so: Lobo v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 144 at [13], Koulaxazov v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 75 per Conti J with whom Gyles J agreed, but see, to the contrary the judgment in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, whereMcHugh, Gummow JJ and Hayne JJ at 351 noted: ' "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have the authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.' 61 What will constitute an irrelevant consideration or a relevant consideration will fall to be determined by reference to the legislation pursuant to which the decision is made, and, perhaps, the matters advanced by the parties: Yusuf at [73] - [74] per McHugh, Gummow JJ and Hayne JJ. 62 The problem with the appellant's submission, however, is that it has neither been shown that there was any irrelevant consideration taken into account, nor that there was any real difference between the appellant's understanding of 'house arrest' and that of the Tribunal so that any relevant consideration was not taken into account. All that the appellant has shown is that the Tribunal came to a conclusion on the issues surrounding the Ayatollah's house arrest with which the appellant did not agree. In fact it seems clear that the Tribunal member gave a proper, genuine and realistic consideration to the evidence relating to the Ayatollah's house arrest and neither took into account any irrelevant consideration nor failed to take into account any relevant consideration.

Inadequate Translation and s 425 of the Migration Act 1958 (Cth) 63 The appellant further submitted that the translation before the Tribunal in relation to the concept of house arrest was so faulty as to deny the appellant the opportunity to present his evidence as required by s 425(1)(a) of the Act. That section obliges the Tribunal to invite the appellant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising on the review application. 64 The appellant relies on the decision of Kenny J Perera v Minister for Immigration and Multicultural Affairs (1999) 92 FCR 6. Although Perera was decided before s 425(1) of the Act was amended it has been accepted that what was there said remains equally relevant to the section as amended: WAIZ v Minister for Immigration & Multicultural Affairs [2002] FCA 1375;Dabare v Minister for Immigration & Multicultural Affairs [2000] FCA 731, Long v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 183; Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555; Soltanyzand v Minister for Immigration and Multicultural Affairs [2000] FCA 917 and Arif v Minister for Immigration and Multicultural Affairs [2002] FCA 1053. In that case her Honour found that a failure by the Tribunal to provide a competent interpreter to assist non-English speaking appellants for refugee status may constitute a ground for review. There, the appellant's answers to questions were frequently unresponsive to the specific questions asked and, at times, virtually incoherent. It was her Honour's view that either the interpreter or the appellant (or both of them) had failed adequately to understand what it was that the Tribunal was asking. Her Honour said at [20]: 'If not proficient in English, the applicant is effectively unable to exercise his right to give evidence unless an interpreter assists him. The Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist. Thus, in my view, if an applicant for refugee status is unable to give evidence in English, the effect of s 425(1)(a) is to necessitate the making of a direction, pursuant to s 427(7), that communication proceed through an interpreter. The terms of any such direction extend to the whole of the hearing and are not limited to the applicant's evidence.' 65 In the present case the appellant's complaint is not that the translator was generally incompetent but merely that the translation of the concept of 'house arrest' was faulty. It seems that there was no direct Farsi translation of the term, and it was said, there was no suitable substitute found by the translator that allowed the Tribunal and the appellant to communicate in regard to that concept. 66 It may be accepted that the expression 'house arrest' was a term which was significant both to the appellant's claim and to the decision which the Tribunal reached. It may also be accepted that the function of an interpreter is to translate from a foreign language to English and vice versa at the Tribunal hearing, thereby placing the appellant as nearly as possible in the position of a person proficient in English by removing barriers which prevent or impede understanding or communication: see Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 at 425 per Samuels JA. It follows from the fact that interpretation is not merely a mechanical exercise that there will be some words, of which 'house arrest' may be an example for which there is no perfect translation: Perera per Kenny J at [25] - [26]. However, the requirement is not that there be a perfect translation, it suffices that the translation is sufficiently accurate as to permit the idea or concept being translated to be communicated. 67 This is not a case where the qualification or competence of the translator is called into question. Nor is it a case where the appellant has been effectively prevented from giving his evidence. A reading of the transcript does not suggest there was any confusion created, either as between the appellant and the interpreter or as between the Tribunal and the interpreter. 68 The expression 'house arrest' as used by the Tribunal has, at its heart, the idea that the person under such arrest is under control and observation in his home. The idea was adequately conveyed by the words 'controlled' and 'observed at home' as used by the interpreter. The transcript indicates that the Tribunal at one point queried the appellant's use of the words 'under control' in relation to the Ayatollah Shirazi being detained and released, when the independent country information indicated that he had been under house arrest. The interpreter immediately told the Tribunal about the difficulty in translating the concept. The Tribunal thanked the interpreter. The interpreter further interrupted the Tribunal twice to reinforce the same point, and the Tribunal acknowledged each interruption. 69 The Tribunal's reasons do indicate that it saw inconsistencies in what the appellant had said about the Ayatollah's teaching at the Hozeh in Tehran and the Ayatollah being at this time under house arrest. The appellant's statement conflicted with both the independent country information and the appellant's later claim that the Ayatollah was only permitted to teach at his home during his period of house arrest. These inconsistencies could not be accounted for by a difficulty in interpretation of the term 'house arrest'. Likewise there was some difficulty about whether it was possible for the appellant to have accompanied Ayatollah Shirazi in 1998 to see Dr Kadivar on two occasions in relation to the death of Jafarri when the Ayatollah was under 'house arrest'. But the difficulty which the Tribunal saw as impacting adversely upon the appellant's credit was not one which arose from any difficulty of interpretation of the term 'house arrest', but one which perhaps occurred due to confusion relating to the location of Dr Kadivar. No breach of s 425 of the Act has been made out. 70 However, the appellant has succeeded in showing that the purported decision of the Tribunal was affected by jurisdictional error, in that the Tribunal had not afforded natural justice to the appellant by failing to give the appellant the opportunity to answer the suggestion that the letters tendered by him after the hearing were not genuine. It follows that the orders of the learned primary Judge must be set aside and a writ of certiorari issued quashing the decision of the Tribunal. The application must be remitted to the Tribunal for further determination according to law. The Minister must pay the costs of the appeal and at first instance. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

M Howard (pro bono publico) Counsel for the Appellant:

Solicitor for the Respondent: Blake Dawson Waldron

Migration Act 1958(Cth)ss 424A, 425, 425(1)(a), 474

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