WADA v Minister for Immigration & Multicultural Affairs

Federal Court of Australia (Full Court)|2002-06-25|Before: Emmett JJ

Introduction 1 This appeal is from a judgment of a single judge of the Federal Court of Australia, dismissing an application for judicial review pursuant to s 476 of the Migration Act 1958 (Cth) ("the Migration Act") of a decision of the Refugee Review Tribunal ("the Tribunal"). The Tribunal affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refusing to grant the appellant a protection visa. 2 Section 36 of the Migration Act provides that there is a class of visas to be known as protection visas. A criterion for a protection visa is that the applicant for the visa be a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The term "Refugees Convention" is defined in s 5(1) of the Migration Act to mean the Convention relating to the Status of Refugees done at Geneva on 28 July 1951. The term "Refugees Protocol" is similarly defined to mean the Protocol relating to the Status of Refugees done at New York on 31 January 1967. It is convenient to call these two instruments together the "Convention". For present purposes, it is enough to say that the effect of the Convention is that Australia has protection obligations to a refugee as defined in the Convention, ie 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". 3 The appellant is a citizen of Iran. He arrived in Australia on 11 November 2000. On 27 March 2001, he lodged an application for a protection visa pursuant to the Migration Act. On 19 April 2001, a delegate of the Minister refused to grant a protection visa. The appellant applied to the Tribunal for review of that decision. On 15 June 2001, the Tribunal published a written decision and reasons for decision. The decision of the Tribunal was to affirm the decision not to grant a protection visa. The appellant applied to the Court for judicial review of the Tribunal's decision. On 5 December 2001, the learned primary judge dismissed the application for judicial review and ordered the appellant to pay the Minister's costs of the application. It is from that judgment that the appellant has brought this appeal. Because of the history of the matter, it is required to be dealt with in accordance with the provisions of s 476 of the Migration Act as they stood prior to amendments that came into operation on 2 October 2001.

The appellant's claims 4 The appellant claimed to have a well-founded fear of being persecuted if he should return to Iran, by reason of his being an Arab Iranian, with past involvement in a political movement aimed at securing a separate Arab State and promoting Arab language and culture. His claims were stated in some detail in an interview with an immigration inspector on his arrival in Australia, a written application for a protection visa, written submissions in support of the application, a record of interview with an officer of the Department of Immigration and Multicultural Affairs, written submissions in support of his application to the Tribunal and oral evidence to the Tribunal at a hearing on 6 June 2001. The claims are set out in considerable detail in the reasons for decision of the Tribunal. For present purposes, it is not necessary to do more than summarise them. 5 The appellant was born at Ahwaz in Iran, and lived there until he left Iran in September 2000. He claimed that Arabs are deprived of their rights and cannot practise their customs freely in Iran. They cannot study in Arabic. While he was at University, the appellant wrote articles about Arabs and their violation of rights. He was detained for four days, accused of instigating Arab nationalism and was released after signing an undertaking. In 1997, he became associated with Khalgh Arab, an organisation fighting for the independence of Khuzestan, a province in the south of Iran in which Ahwaz is located. He was arrested in 1998. During his military service, he began organising political activities aimed at achieving social justice and Arab freedom. He and some friends established a group, linked with an Arab activist. 6 In July 1999, there was a meeting between city authorities and citizens to discuss the problems of Ahwaz. The meeting became unruly. Security forces raided the meeting and arrested the appellant and others. The appellant was detained for ten months, but was released because there were no allegations against him other than trouble-making at the meeting. 7 The appellant's group became involved in holding meetings, writing slogans and preparing leaflets and articles. They revealed information about an oil pipe explosion and the confiscation of Arab farmers' land. They instigated and helped in a strike. They had articles printed in an Ahwaz newspaper about oppression of Khuzestan Arabs. In 2000, they began a campaign against confiscation of Arab farmers' lands for the building of a power station. This led to a blockade of the site. That night the appellant was at a meeting in a house, which was raided by authorities. He escaped over rooftops, evading shooting. He escaped by swimming in a river. After five days he managed to reach his uncle's house. He learnt that two of his friends were killed in the clashes, everyone at the meeting was arrested and the authorities were after him. He decided to flee the country. His uncle helped him. He used a people smuggler and a false Iraqi passport.

The Tribunal's reasons 8 As well as the information provided by the appellant, the Tribunal relied on information from a Lonely Planet guidebook on Iran, the Canadian Immigration and Refugee Board's Research Directorate, the Department of Foreign Affairs and Trade, the United Nations High Commissioner for Refugees and the World Minorities Group, and on the absence of information of a particular kind in the United States Department of State's Country Reports on Human Rights Practices. 9 In the course of its reasons for decision, the Tribunal said: "The applicant had wanted a witness to give evidence on his behalf. Through administrative oversight, the person concerned was not brought to the hearing. At the end of the hearing, I advised the applicant that if he wanted me to consider this person's evidence, a brief statement should be provided to the Tribunal within seven days. I did this because there was insufficient time to arrange for the witness to be conveyed from the detention centre to the hearing. I advised Dr Al Jabiri, the applicant's adviser, that he could also provide any final written submissions at this time. Dr Al Jabiri agreed to do so. I advised the applicant and Dr Al Jabiri that I would consider any statement provided and decide whether I needed to take oral evidence from the witness. However, no further evidence or submissions have been provided to the Tribunal. Dr Al Jabiri did, however, provide a further document to the Tribunal on 14 June 2001." 10 The Tribunal accepted that the appellant is an Iranian National and an Arab. It found, however, that he had fabricated claims in an attempt to bring himself within the definition of a refugee. It did not find him to be a credible or a reliable witness. The Tribunal found the appellant to be a well-educated man, apparently from a fairly affluent background, who speaks Persian, Arabic and reasonably good English. There was nothing in the way he gave evidence before the Tribunal to suggest that he is naive, deficient in understanding or easily intimidated. He impressed the Tribunal as a person who would ask questions to clarify the situation, if he were unsure of what he was being asked. 11 In the light of these findings, the Tribunal rejected the appellant's claims that he had been involved in political activities in Iran, had been imprisoned because of them, had narrowly avoided being arrested and had left Iran illegally. In his interview at the airport on arrival, the appellant had said that he had not been involved in any political activities or with any political groups. He also said that he had left Iran using a genuine Iranian passport. The appellant gave several reasons for the discrepancy between what he said at that interview and his later claims. The Tribunal rejected all of them. These reasons were that the appellant did not want the Australian Government to think he had left Iran illegally, he had heard that he should leave the details of his claims to the last interview, he feared that some information might be passed to the Iranian Government and the interpreter involved in the airport interview told him to keep his answers brief. The Tribunal accepted that, for a variety of reasons, asylum seekers may be reluctant to disclose full details of their claims on arrival in Australia. It found that reluctance quite understandable. It recognised that a record of interview may be inaccurate for a variety of reasons, including interpreting errors. The Tribunal said that, at times, it may be inappropriate to place weight on the record of such an interview. In the appellant's case, however, the interviewing officer specifically told him that he was expected to tell the truth during the interview, that the interview was his opportunity to provide any reasons why he should not be removed from Australia, and that if the information he gave at any future interview differed from what he said at the initial interview, this could raise doubts about the reliability of what he said. 12 The Tribunal also rejected specifically the appellant's account of his escape over rooftops from a raid on a meeting. It accepted that houses in Ahwaz have access to rooftops, but took the view that this is something that would be known to the authorities. If they wanted to raid a house and arrest all the occupants, the authorities would take steps to ensure that the access points to and from the house were appropriately secured. The Tribunal found the appellant's evidence of this incident "unconvincing". 13 On the basis of information from sources other than the appellant, the Tribunal found that there was a push for the independence of Khuzestan at the time of the revolution in Iran. Since then, Arab Iranians supported the Iranian Government during the Iran-Iraq war. There was no evidence of any current political push for autonomy by Arab Iranians. 14 The Tribunal dealt with a letter, produced by the appellant, from the Ahwazian Arab People's Democratic Popular Front, stating that the appellant "is a supporter of our organisation" and that his life is endangered as "he is sharing our political-social activities daily here in the United Kingdom and Europe". The Tribunal pointed out that the appellant had not claimed that he had ever been to the United Kingdom or Europe, so he could not have been involved in any political activities in such locations. The letter did not suggest that the organisation was active within Iran or that the appellant was involved in political activities in that country. If it were active in Iran, the organisation would be known to the agencies from which the Tribunal had received information. 15 Overall, the Tribunal was not satisfied that the appellant was ever involved in any political activities in Iran. It found that he had fabricated his claims in this regard in an attempt to create for himself the profile of a refugee. The Tribunal was not satisfied that he was ever detained by reason of political activities, or that he escaped from being arrested. It found that the chance that he would be involved in political activities in the future that would bring him to the adverse attention of the Iranian authorities was remote. It was not satisfied that the appellant had a well-founded fear of persecution for reasons of his political opinion. 16 The Tribunal did not accept that the appellant left Iran illegally. It found that he left Iran legally, using a genuine Iranian passport. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason arising out of the manner of his departure from Iran. It accepted that he had disposed of his Iranian passport on his way to Australia, but found that he could request the Iranian Embassy to issue him with a replacement travel document. There was no evidence that such a request would give rise to a well-founded fear of persecution for a Convention reason. 17 The Tribunal also considered whether the appellant had a well-founded fear of persecution merely because he was an Arab Iranian. It noted that the appellant speaks, reads and writes Arabic. On the appellant's evidence, there are two or three hours of Arabic language programs on television in Iran every day. The appellant's father farms the land he owns. Income from the family farm supports the family and is sufficient for the appellant's father to pay day labourers to work on the farm, to have paid the appellant's university fees and to support him in Australia. The appellant was able to gain entrance to and graduate from university. He was an officer during his military service. He obtained employment on completion of his military service. Overall, the appellant's evidence concerning himself and his family did not suggest that he had been disadvantaged by being an Arab. 18 The appellant had claimed that there are no newspapers in Arabic in Iran. The Tribunal referred to evidence that the Iranian Government Press Agency publishes a daily Arabic language newspaper. In response to this, the appellant claimed that newspaper was not available in Ahwaz. Even so, the Tribunal was of the view that the fact that the newspaper was published indicated that the Iranian authorities acknowledge that there are Arabic speakers in Iran and is prepared to provide them with at least some information in their own language. 19 The Tribunal referred to some evidence, dated 1996, that Arab activists in Iran alleged that the Government was trying to stamp out their culture. The Tribunal had not been able to locate any independent evidence indicating the specific nature of this allegation, nor any evidence suggesting that it was true. It accepted that many Arabs in Iran live in economically deprived conditions. Even if the appellant or his family were economically deprived, it would not follow that this would amount to persecution or that they had a well-founded fear of persecution for a Convention reason. 20 The Tribunal accepted that the appellant was involved in Arab cultural activities while at university. It did not accept that the activities had any political dimension. Nothing in the evidence before the Tribunal suggested that engaging in Arab cultural activities would lead to persecution. The Tribunal was not satisfied that the appellant was ever detained or otherwise harmed because he engaged in Arab cultural activities. It was not satisfied that the appellant was persecuted in the past because he was an Arab or that he had a well-founded fear of persecution for that reason. 21 The Tribunal also considered whether the appellant would fear persecution because he applied for refugee status in Australia. It found that the Iranian authorities would not take an adverse interest in a person merely because the person applied for refugee status abroad. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution because he applied for refugee status in Australia. 22 The Tribunal was therefore not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention.

The application for judicial review 23 The appellant's original application to the Court contained handwritten grounds in the following terms: "a) There was no evidence or other material to justify the making of the decision that the applicant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed if he returned to IRAN within the reasonably foreseeable future. b) The decision involved an error of law, being an error of law involving the incorrect interpretation of the applicable law of [sic] an incorrect application of the law to the facts as found by the Tribunal or both." The application thus invoked the grounds specified in s 476(1)(g) and (e) of the Migration Act.

The primary judge's reasons 24 In his reasons for judgment, the learned primary judge noted that the appellant was not legally represented and that the submissions he made were of a factual nature, relating to the merits of the Tribunal's decision. Those submissions did not, in his Honour's opinion, raise any question of error of law or jurisdictional error on the Tribunal's part. His Honour said that he had scrutinised the papers and the Tribunal's reasons to see whether there was reviewable error. 25 The learned primary judge said that the Tribunal set out the relevant law correctly and that there was nothing later in its reasons to suggest that it did not apply the law as earlier recited. The essential basis for the Tribunal's decision was that it did not believe the appellant. The Tribunal gave reasons why it disbelieved the appellant. His Honour held that whether or not those were cogent reasons is not a matter for the Court. 26 His Honour also found that there was ample evidence or other material to justify the making of the decision that the appellant did not have a well-founded fear of persecution by reason of his political opinion, real or imputed, if he returned to Iran within the reasonably foreseeable future. Neither the appellant's submissions nor his Honour's examination of the papers disclosed any error of law. The Tribunal's conclusion that it was not satisfied that the appellant was a person to whom Australia has protection obligations under the Convention was open to it on the material before it. In his Honour's view, the Tribunal made no reviewable error, whether error of law or jurisdictional error.

The grounds of appeal 27 The appellant's notice of appeal also contains handwritten grounds. They are as follows: "1 - The decision is contrary to law. 2 - The decision places the applicant at serious risk of being forcibly returned to Iran where he has a well-founded fears [sic] of being persecuted." 28 Before the hearing of the appeal, the appellant filed handwritten submissions. In them, he complained that the delegate of the Minister had wrongly classified him as not having been immigration cleared, and had therefore wrongly considered him only for a temporary protection visa, rather than for a permanent protection visa. He also complained of other aspects of the delegate's decision. 29 Also in his written submissions, the appellant referred to legal principles raised in W375/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 379, [2002] FCAFC 89. In that case, the Court found as a fact that the asylum seeker had not failed to mention in his initial interview a claimed basis of his fear of persecution if returned to his home country. The Tribunal had therefore made an error in disbelieving him in relation to that claim; it had not dealt with the case put by the asylum seeker. The appellant sought to bring his case within those principles, even inviting us to listen to the tapes of his initial interview, as did the Full Court in that case. His point was that he was complaining that he had been persecuted for activities he characterised as cultural and educational, not as political, but the distinction was not understood. 30 The appellant's written submission included an argument that the failure to hear his witness, due to an "administrative oversight", amounted to an error on the part of the Tribunal, which he characterised as "a denial of natural justice with particularly serious consequences in circumstances where I fear for my life if I am forcibly returned to Iran." He also argued that the Tribunal and the learned primary judge had misapplied the "real chance" test and taken a wrong approach to a finding of risk of persecution if he were forcibly returned. He complained of reliance on the Lonely Planet guidebook and other materials dated between 1996 and 1998, and not attempting to corroborate these materials with more up to date country information available from the Department of Foreign Affairs and Trade and the Iranian authorities. He relied on a recent article in The Age newspaper about the fate of some Iranians forcibly returned to Iran from Australia, who were alleged to have been interrogated on arrival at Tehran airport and ordered to appear before the Iranian revolutionary tribunal. 31 The appellant appeared without legal representation and made oral submissions through an interpreter. Those submissions may be summarised as follows: · The appellant complained that his story was not accepted as the truth. · At the initial interview, he said that his problems were of a cultural and educational nature, and were not political. The lack of understanding of what he was putting was due to incomplete interpretation of his words. The difference between political activities and cultural or educational activities should be recognised and understood. The appellant could say that his activities were tribal or group activities, or even political activities. · He was unable to prove his case properly because his witness could not come to the Tribunal. He did not understand that he could have submitted a written statement of the witness after the hearing. · At the initial interview, the appellant did say that he would be prosecuted, imprisoned and possibly killed if he returned to Iran, but was not taken seriously. The article from The Age newspaper supported his claim. · People who have been tortured and persecuted severely have difficulty in interviews. They do not wish to bring back memories by talking about their experiences. If a refugee explains his fears and experiences, all should be considered. All the information the appellant had provided should be enough to be accepted for a protection visa in Australia. · Contrary to par 200 of the Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status ("the UNHCR Handbook"), the Tribunal placed great weight on the initial interview of the appellant at the airport. Several interviews are required before deciding if an asylum seeker is entitled to protection. · Contrary to par 203 of the UNHCR Handbook, the Tribunal did not give the appellant the benefit of the doubt. It did not recognise that it is impossible to provide documents and witnesses to substantiate all elements of a claim. Because there is no proof against what the appellant said, or the documents he produced, he is entitled to protection. Instead, he has been accused of lying and the documents he produced have been used against him, especially the letter he obtained from England, showing his involvement with the group. · There is no internationally accepted meaning of or explanation for cruelty. If any tribal, religious, educational, cultural or ideological activities are restricted, there is cruelty. Iran is a terrorist country whose government is the most cruel in the world at the moment. · The Tribunal claimed that the appellant was not fearful. How could it prove that? 32 The appellant's submissions did not expand upon the grounds of the appeal in terms of the grounds for judicial review specified in s 476(1) of the Migration Act, or in terms of any question of error on the part of the learned primary judge.

The determination of the appeal 33 In a case such as this, it is important to understand the function of the Court. An application to the Court for judicial review of a decision of the Tribunal does not provide another opportunity for the applicant to repeat claims made to the Tribunal, and earlier, in the hope that they will be believed. The Court is confined by s 476 of the Migration Act to the grounds of judicial review specified in that section. Those grounds do not permit the Court to make findings of fact in relation to an applicant's claims different from those made by the Tribunal. The Court cannot substitute its own view of an applicant's credit for the view of the Tribunal. The Court's only function is to decide whether there has been some error on the part of the Tribunal falling within the grounds specified in s 476. 34 On appeal from a judgment of a single judge, the function of the Full Court is to decide whether the primary judge made any error on the material before that judge. Again, the Full Court cannot look at the facts and reach its own conclusions on the merits of a particular application for a visa. If the appeal is to succeed, it can only succeed on the basis that there was an error by the primary judge in reviewing the Tribunal's decision on the grounds specified in s 476 of the Migration Act. 35 Most of the appellant's written and oral submissions addressed the factual merits of the case. It was clear that the appellant was seeking to persuade the Court that the delegate of the Minister, or the Tribunal, should have granted him a protection visa. The Court cannot look at the matter on this basis. There is no indication that the appellant's case suffered at the Tribunal by reason of inadequate interpreting. He was represented at the hearing and his representative, Dr Al Jabiri, did not complain of problems with the interpreter. Nor did the appellant do so before the learned primary judge. The appellant's problem is that the Tribunal disbelieved some aspects of his claim and found that the aspects it did accept did not give rise to a real chance that the appellant would suffer persecution for a Convention reason if he were to return to Iran. Even if it were persuaded that the Tribunal should have taken a different view, the Court cannot overturn the Tribunal's decision for that reason. 36 To the extent to which the appellant sought to challenge the approach of the delegate of the Minister, the Court is unable to deal with his argument. As the appellant had the benefit of a full review of the delegate's decision by the Tribunal, any criticism of the delegate's decision is irrelevant. The task of the Tribunal was to deal with the appellant's application for a protection visa afresh, on the material before it, not simply to determine whether the delegate had made the right decision on the material before her. The task of the Court is to see whether the learned primary judge erred in dealing with the application for judicial review of the Tribunal's decision. 37 The case of W375/01A is different from the present. Unlike the asylum seeker in that case, the appellant did not claim that he had in fact said something in his first interview that the Tribunal found he had not said. The appellant's complaint was that, by describing his case as political, the Tribunal was misconstruing the nature of the claim he made. The Tribunal did ask itself the question whether the appellant could be entitled to protection because of his political opinion. Given the nature of the appellant's case, it was bound to do so. It also considered whether the appellant was entitled to protection on the basis of his race (which included his cultural activities and concerns). It rejected his claim in this respect because it found that there is no persecution of Arabs by reason of their race in Iran. In short, the Tribunal did not fail to deal with the case that the appellant put. It made use of the initial interview in one respect, namely as going to the credit of the appellant in putting elements of his case that he had not put in that interview. The appellant did not claim to have put in his interview the things that the Tribunal identified. There was no point in the Court listening to the tapes of the interview when the Tribunal had not failed to deal with some aspect of the appellant's case. 38 The absence from the Tribunal of the appellant's witness was a matter that the Tribunal sought to overcome by asking for a written statement of the witness's evidence. Although the appellant may not have understood the Tribunal's direction in this respect, he was represented at the hearing by Dr Al Jabiri. There is no indication that Dr Al Jabiri failed to understand that a written statement was required. It is significant that Dr Al Jabiri did submit a document to the Tribunal after its hearing, but did not submit a written statement of any witness. The Tribunal was not bound to hear the witness. Even if the appellant had given notice in accordance with s 426(2) of the Migration Act that he wished the Tribunal to take the oral evidence of the witness, the Tribunal would have been bound by s 426(3) to do no more than to take the appellant's wish into account. The appellant could not have been in a better position by attending the hearing and saying that he wished to call a witness. The Tribunal took into account the appellant's wish and took steps to satisfy it. It was the appellant, or his adviser, who failed to ensure that the witness's evidence reached the Tribunal in some form. 39 Nothing in the Tribunal's reasons for decision indicates that it misapplied the "real chance" test. It stated the test correctly and there is no indication that it failed to understand the law or to apply it properly. It considered all of the elements of the appellant's case. In rejecting some aspects of the appellant's evidence, it did so carefully, considering what weight it should give to the absence of some matters from the initial interview. 40 The Tribunal was entitled to take into account material from sources in 1996 and 1998. It does seem odd that the Tribunal would rely on a travel guide for information about the Iranian government's treatment of racial minorities, but the selection of the material on which it relies is a matter for the Tribunal. 41 The article from The Age newspaper was dated well after the Tribunal made its decision and after the learned primary judge had given his judgment. It is not something the Tribunal could have taken into account and not something that can be used to challenge the Tribunal's decision or to demonstrate error on the part of the judge. 42 The appellant's reliance on the UNHCR Handbook does not assist him. The UNHCR Handbook does not have legal status in Australia. By its own terms, it is intended to provide nothing more than "guidance" for government officials concerned with the determination of refugee status in States that are parties to the Convention. It cannot override the provisions of the Migration Act. See WACW v Minister for Immigration & Multicultural Affairs [2002] FCAFC 155 at [17]. 43 Like the learned primary judge, the Court has looked carefully at the Tribunal's reasons for decision. It is not possible to identify in those reasons any error that would fall within the grounds specified in s 476 of the Migration Act. The learned primary judge was correct to identify the Tribunal's view of the appellant's credit as the essential basis for its decision. His Honour was correct to say that the Tribunal was entitled to take the view it did of the appellant's credit on the material before it. His Honour was also correct in saying that there was ample evidence or other material to justify the making of the decision and that no error of law was revealed. 44 It is not possible for this Court to find that there was any error on the part of the learned primary judge, or of the Tribunal, falling within the grounds specified in s 476 of the Migration Act.

Conclusion 45 As the appellant has been unable to establish any ground of appeal, the appeal must be dismissed. The appellant must be ordered to pay the Minister's costs of the appeal. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Appellant: The Appellant appeared in person

Solicitor for the Respondent: Australian Government Solicitor

UNHCR Handbook Migration Act 1958(Cth)ss 5(1), 36, 426(2), 426(3), 476(1)(e), 476(1)(g)

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