WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs

The Tribunal's Reasons for Decision 5 In its reasons for decision, under the heading "Claims and Evidence", the Tribunal reviewed the contentions and materials put before it on behalf of the applicant. It noted and appeared to find that the applicant is a national of Iran who resided in Tehran. At the time of the hearing before the Tribunal he was aged 29 years and unmarried. He had a post-secondary school education in Iran in physics and mathematics. He gave evidence that he had worked there in a private business with his brother and as a reporter/writer with the university magazine. From 1997 until he left Iran in 1999 he worked as a reporter for a monthly university newsletter which was called the Amir Kabir University Monthly magazine. His job required him to monitor news stories and collect relevant information. The magazine had several sections including news and poetry. 6 The applicant said he had become an intimate associate of a person called Farahanipour, whom he described as an intellectual and the leader of the monarchist and nationalist group known as Marz-e-Porgohar. He was drawn to that group as it was concerned about social and democratic institutions. He said he had distributed literature on its behalf. The group was illegal and unregistered. He said it was a branch of the Movement for Freedom which he said was a nationalist and religious organisation. 7 The applicant claimed that he had participated in political demonstrations in July 1999. Early in September 1999 he had been arrested and detained for eleven days. He did not feel particularly threatened at the time and his brother was able to arrange for his release under a surety. Initially he was not certain why he had been arrested but later realised that it was due to his connection with Marz-e-Porgohar and the desire of the authorities to find a scapegoat for damage that occurred during riots that broke out during the demonstration. His understanding of the reason for his arrest occurred when his captors asked him about the group. Following his release from detention he said he was picked up by authorities and interrogated on three occasions about Farahanipour and the activities of the group. He said he was seriously mistreated during his interrogation. He also heard that a summons was to be issued for him. The applicant submitted to the Tribunal a document dated 5 November 2001 said to be supportive of his claim to be a close associate of Farahanipour. The document was purportedly from Farahanipour who was then residing in the United States. 8 The applicant said he had left Iran illegally by going overland to Pakistan in a vehicle with a people smuggler who occasionally instructed him to keep his head down so he would not be discovered. In Pakistan he had obtained a Turkish passport with the name of another person and then made his way to Malaysia and Indonesia. He told the Tribunal that he had lost his passport and some other documentation in a Malaysian swamp. He said that, since his departure from Iran, his brother had been questioned several times about his whereabouts. His brother told the authorities he did not know his location. The applicant told the Tribunal that he had applied for refugee status with the United Nations High Commissioner for Refugees while he was in Indonesia but his application was rejected because the interpreter who assisted him was inadequate to the task and he was only able to raise about a third of the issues which he considered were relevant to his application. 9 The Tribunal then turned to its own assessment of his evidence under the heading "Discussion of Evidence and Findings". It did not accept that the applicant was employed on the permanent staff of the university newspaper or that he was other than an occasional contributor to it. It considered that he was vague about matters such as the management of the newspaper and its editorial approach and the detail of his own role within it. He had never claimed to have contributed to an anti-government publication and had written under a pseudonym. His evidence at the hearing was to the effect that his role in preparing articles was essentially collecting information and news that had already been in the public domain. The Tribunal observed that the applicant knew only a few details about the Marz-e-Porgohar group and its leader, Farahanipour. His evidence did not indicate a close personal relationship with either the group or the leader. 10 The Tribunal accepted that the applicant had identified himself politically with Marz-e-porgohar and that he might have met Farahanipour but not that he had ever had a close or enduring association of any note either with the group or the leader. It accepted he occasionally distributed flyers for the group but not that he had a role beyond that or a profile of any note. In coming to that conclusion it considered a document of 5 November 2001 which was purportedly an email from Farahanipour urging humanitarian consideration of the applicant's case. 11 The text of the email was as follows terms: "To Whom it May Concern This is a plea for your special attention to Mr [WAEJ] and his asylum request in Australia. Marze Por-gohar (MPG) Party (the Glorious Frontiers Party of Iran) would like to extend its support based on humanitarian grounds for Mr [WAEJ] and all the other daring political activists in Iran that have been forced to live in exile." (sic) In the aftermath of the student uprising of 1999, many political activists such as Mr [WAEJ] and myself were imprisoned and even after being released we were under the constant surveillance and threat of the government agents. As such many political activists have been forced to take refuge in other countries. MPG would like to thank the Australian government for playing such an important role in helping hundreds of Iran political refugees. Please feel free to contact us if you need more information. With best regards, Roozbeh Farahanipour Executive Director Marze Por-gohar Party" There followed a post office box number and address in Los Angles, California, a telephone number and an email number as well as a website address for Marz-e-Porgohar. 12 The Tribunal stated that despite the applicant's claimed intimate association with Mr Farahanipour the document was not produced until the time of the first judicial review hearing in the Federal Court. It was addressed to his adviser and it did not indicate any particular relationship between the applicant and the writer. It was general about any role he played with the group. In light of the unsatisfactory nature of the applicant's evidence and considering the timing of the document, the Tribunal was not satisfied as to its genuineness. 13 In reaching its ultimate finding that the applicant was not a refugee, the Tribunal noted that occasional mass demonstrations continue in favour of political reform and over particular issues such as the closure of some publications. It then referred to a report from Reuters News Service of 10 April 2000 that Iran's courts had closed several pro-reform publications and banned some of their publishers from press activities. The same report, however, said that their journalists had often launched new publications using liberal licensing rules introduced by Kahatami who had been elected on a reform platform in 1997. The Tribunal said: "It is apparent that despite some staunch opposition Iran has in recent times embraced various reforms and that many students and others have been able to demonstrate or take other peaceful action in support of reformist causes without facing persecution as a consequence." 14 The Tribunal referred to country information from the United States' Department of State and the Australian Department of Foreign Affairs and Trade. It noted that most of those who had been arrested in the demonstrations in 1999 were quickly released. The interest of the authorities in demonstrators who escaped initial arrest was confined to those with a high profile. Even on his own claims, the applicant did not have the profile of a leader or organiser. It was improbability that the applicant had been pursued and persecuted as a consequence of any peaceful, political activity even if his claims were true. The Tribunal said: "While accepting that the applicant and other group members were among those who participated in mass demonstrations held in July 1999 the Tribunal does not accept, in light of aforementioned information, that he was, as he initially claimed, detained some two months later by reason of such participation." The Tribunal gave weight to the fact that Farahanipour was himself released after a period of detention dating from 13 July 1999. 15 The Tribunal noted that the applicant did not feel threatened at the time of his asserted detention in September 1999. It did not accept that he would have been released without charge upon his brother's intercession if he had been of any real interest to the authorities. The Tribunal said: "The Tribunal does not accept that the applicant would have been released from custody if he were wanted in relation to any role in a demonstration that turned violent or in relation to any link to a banned group. In assessing the applicant's evidence and especially the implausibility of him being so easily released if he were of any real interest to the authorities (for any of the reasons he has variously outlined), and considering his demeanour at the hearing before it when giving evidence as to his alleged political links, the Tribunal finds that the applicant has fabricated claims of being taken into custody in September 1999 by reason of his political opinion or for any other Convention reason. It finds that he has grossly exaggerated his claim of an association with Farahanipour and his group in order to provide a plank for seeking asylum. It finds, also, that if the applicant was, indeed, detained for some other reason, he satisfied the authorities he was not of any continuing interest to them and was released accordingly." 16 The Tribunal referred to the applicant's initial interview in which he had claimed to have been released on bail even though he was never taken before a court. Since that interview he had made additional claims that he was detained briefly for questioning on three occasions. He said he did not include these details in his initial statement as he was instructed by the interviewer to stop making other claims. The Tribunal did not accept this. It found that he had fabricated his belated claim of continuing interrogation. It rejected his evidence that he was released on reporting conditions and subsequently rounded up for interrogation on any occasion. 17 The Tribunal regarded the applicant's evidence of his allegedly illegal departure from Iran without passing through any border check as vague and unsatisfactory. It referred to country information about exit procedures in Iran, including the existence of an extensive and computerised black list at the airport where persons intending to depart the country must pass a number of different checks. 18 The Tribunal said: "In view of the lack of credible evidence as to any official interest in the applicant and the unsatisfactory evidence the applicant has given as to how he actually departed Iran, and then later lost or gave away a false passport, the Tribunal is not satisfied that he left Iran illegally. In light, also, of the absence of any supporting documentation and considering the lack of any demonstrated need for the applicant to have departed Iran illegally the Tribunal concludes that he has fabricated that claim. In assessing all the available material, the Tribunal concludes that the applicant departed Iran legally and that he was able to do so because he was not wanted by the authorities for political or other reasons." The Tribunal rejected the applicant's claim that since his departure from Iran, his brother has been questioned about him. It also concluded that if Iranian authorities were to learn of the applicant's application for asylum in Australia he would not face persecution as a consequence.

Evidence at the Hearing 19 Evidence was placed before the Court at the hearing of this application in the form of two affidavits sworn by the applicant's solicitor and counsel, Mr Christie. One of these exhibited a transcript of the hearing before the Tribunal. The other exhibited a letter dated 13 January 2002 and accompanying materials, from the Marz-e-Porgohar website, faxed to the Tribunal by Mr Christie. It appears that while the Tribunal received the website material only part of the first page of Mr Christie's two page letter was successfully transmitted. 20 The part of the first page that was transmitted comprised the letterhead of the solicitors Christie & Strbac and their address. It contained the date of the letter and the addressee which was the Presiding Member of the Refugee Review Tribunal in Melbourne. It also set out the address of the Tribunal in Melbourne. The text of the letter, as received by the Tribunal, was in the following terms: "Dear Sir, [WAEJ] RRT Number VO1/13564 - URGENT HEARING LISTED FOR 14 JANUARY 2002 I refer to the hearing listed in the above matter and I must apologise for the late delivery of these materials in support of the applicant's case. I enclose the following documents for your consideration:" 21 The complete letter went on to list the enclosed documents and then said: "You will see from the above documents and particularly from accessing the Marze Porgohar Website that Roozbeh Farahanipour at least from the time he has left Iran has become a ferocious critic of the Iranian regime, although I assume that for his own safety he would have been much more circumspect whilst he remained in Iran. The applicant was a close friend of Mr Farahanipour and assisted him in disseminating his material within Iran prior to the events of July 1999. Further during the Applicant's detention in September 1999 and on the subsequent occasions when he was requested to attend at Prosecutor's Offices for questioning the questioning was principally about the Applicant's knowledge of Mr Farahanipour's activities and contacts and whether he had contacts abroad. The Applicant left Iran in breach of the requirement that he be available to provide any information as required and a summons was issued against him following his departure. He will clearly suffer from his association with Mr Farahanipour and the Marze Porgohar and their repeated criticism of the regime if he should be returned. There have been many recent reports of heavy punishment meted out to any who criticise the regime and particularly the Courts and the Supreme leader, including intellectuals, the press and even parliamentarians allied to the President."

Grounds of Review 22 The first ground of review is that the Tribunal's decision was not a bona fide exercise of the Tribunal's power. This ground is extensively particularised. It is asserted that the Tribunal failed to accord the applicant natural justice in that it made findings unfavourable to him on matters in respect of which both the delegate and the first Tribunal had made favourable findings. It is asserted that the Tribunal did not inform the applicant that it was considering or rejecting those favourable findings. It is said that the Tribunal did not give any indication that it did not accept the email from Farahanipour as genuine. It is also alleged, under this general heading of want of bona fides, that the Tribunal failed to have any regard to or even to read the material provided by the applicant's adviser by the fax of 13 January 2002. The Tribunal, it is said, failed to obtain a legible copy of the letter from the applicant's adviser containing submissions or argument. It thereby failed to comply with the provisions of s 414 and s 424 of the Migration Act 1958 (Cth). 23 The second ground of review is that the Tribunal erred in law and thereby exceeded its authority and committed a jurisdictional error. Under this heading it is said that the Tribunal had regard to irrelevant materials relating to security checks at Iranian airports and made its decision that the applicant had fabricated his claim to have left Iran illegally on the false premise that he had left via an airport. 24 The Tribunal's conclusion that country information relied upon by it, namely the Reuters News Service report of 10 April 2000 supported its findings that many students have been able to demonstrate or take other peaceful action without facing persecution, was said to be illogical in the sense of being irrational or perverse. There was no material to support the conclusion. Also under this heading it is said the Tribunal did not accord natural justice to the applicant or comply with the requirements of s 414 and s 424 of the Migration Act which require it to conduct a review and to have regard to any information received by the Tribunal and to alert the applicant if that material is in a form which is not accessible by the Tribunal.

Statutory Framework 25 Section 414 of the Act appears in Division 2 of Part 7, which Division deals with review of decisions by the Refugee Review Tribunal. Section 414 provides: "414(1) Subject to subsection (2), if a valid application is made under section 412 for review of an RRT-reviewable decision, the Tribunal must review the decision. (2) The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3)." 26 Section 424 appears in Division 4 of Part 7 which deals with the conduct of the review. Section 424 provides: "424(1) In conducting the review the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite a person to give additional information. (3) The invitation must be given to the person: (a) except where paragraph (b) applies - by one of the methods specified in section 441A; or (b) if the person is in immigration detention - by a method prescribed for the purposes of giving documents to such a person." Mention should also be made of s 424A which requires the Tribunal to give to the applicant particulars of information that the Tribunal considers would be the reason or a part of the reason for affirming the decision that is under review and ensure as far as is reasonably practicable that the applicant understands why it is relevant to the review. In such a case the Tribunal must invite the applicant to comment on that information. 27 The jurisdiction of the Court to review a decision of the Tribunal derives from s 39B of the Judiciary Act 1903 (Cth). Subject to immaterial exclusions under s 39B(2), s 39B(1) replicates in statutory form the original jurisdiction conferred upon the High Court by s 75(v) of the Constitution. The Court also has jurisdiction conferred by s 39B(1A)(c) in any matter arising under any laws made by the Parliament other than criminal matters. 28 Also relevant to the exercise of the Court's jurisdiction is s 474 of the Migration Act, introduced into the Act by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). Section 474(1) provides: "474(1) A privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account." It is unnecessary for present purposes to refer to the other provisions of s 474. It is sufficient to say that a decision of the Refugee Review Tribunal is a privative clause decision for the purposes of that section.

The Operation of the Privative Clause 29 Since the hearing of argument in this case, the Full Court has delivered judgment in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs. That case involved a concurrent hearing of five separate appeals from single judges of the Federal Court to a specially constituted bench of five judges. This was done in order to endeavour to resolve differences of interpretation in respect of s 474 by various judges of the Court at first instance. The majority view in NAAV is reflected in the reasons for judgment of von Doussa J, with whom Black CJ and Beaumont J agreed, albeit they both wrote separate judgments. In substance, his Honour held that the section was to be construed in accordance with the approach taken by Dixon J to a similar privative clause in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598. In that case, which dealt with a similarly worded provision of the National Security (Coal Mining Industry Employment) Regulations, Dixon J said of such provisions, at 615: "They are not interpreted as meaning to set at large the courts or other judicial bodies to whose decision they relate. Such a clause is interpreted as meaning that no decision which is in fact given by the body concerned shall be invalidated on the ground that it has not conformed to the requirements governing its proceedings or the exercise of its authority or has not confined its acts within the limits laid down by the instrument giving it authority, provided always that its decision is a bona fide attempt to exercise its power, that it relates to the subject matter of the legislation, and that it is reasonably capable of reference to the power given to the body." A further condition that the purported exercise of power by the decision-maker must not contravene a "final limitation upon the powers, duties and functions" of the decision-maker was also recognised by Dixon J in Hickman and by von Doussa J at [619] in NAAV. von Doussa J did not accept that jurisdictional errors of the kind described in Craig v South Australia (1995) 184 CLR 163, including breaches of the rules of natural justice would be excluded from the validating effects of s 474(1). 30 His Honour treated as "unexceptional" a statement from the judgment of Tamberlin J in SBBK v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 565: "… that a privative clause will not usually protect a decision that exceeds constitutional limits, or a decision that is made in breach of a specific, express or indispensable precondition to jurisdiction or exercise of power, nor will the privative clause serve to validate a decision where there has not been a compliance with a condition that is essential to the exercise of jurisdiction in accordance with statutory terms."

Want of Bona Fides - Breach of Natural Justice 31 Whatever the scope of want of good faith, it does not comprehend breaches of the requirements of procedural fairness save for actual bias which may or may not, according to the circumstances of the case, constitute bad faith. 32 In this case the first Tribunal had accepted that the applicant was involved in the Marz-e-Porgohar group and that he was detained as claimed. It also appeared to accept that he was bailed out by his brother but noted that even if the authorities were interested in him, he was not considered of such interest as to warrant continued detention. It concluded that his political profile was not such as would attract the adverse attention of the authorities on his return to Iran and that he did not face a real chance of persecution by reason of his political opinion. The first Tribunal also evidently accepted that the applicant left Iran illegally and that he might face some punishment or sanction for that departure but determined that this would not fall within the ambit of the Convention. 33 The Second Tribunal was not bound to adopt the findings of its predecessor. Indeed there may even be a question whether it was entitled to do so. Section 416 of the Act does provide that where a non-citizen makes an application to the Tribunal and then a further application, the Tribunal is not required to consider any information considered in the earlier application. However it may have regard to and take to be correct any decision that the Tribunal made about or because of that information. The section does not apply to the present case because there is no "further application" involved. 34 The Tribunal is obliged to determine the case upon the basis of the material before it. There is no requirement of procedural fairness that it should indicate to an applicant that it does not regard itself as bound by any of the findings of a previous Tribunal. In the circumstances of the present case there is, in any event, no suggestion that the applicant failed to put any part of his case to the Tribunal on any assumption about its approach to previous favourable findings. And even if there were a breach of procedural fairness, the operation of s 474 as construed in NAAV would have the effect that the Tribunal's decision would not be invalidated by any such breach. In relation to the way in which the grounds of review are framed in this case it could not be said that the conduct attributed to the Tribunal in this respect constitutes a failure to make its decision bona fide. 35 The second aspect of the ground relating to a want of good faith is the Tribunal's failure to have regard to or read the material provided by the applicant's facts of 13 January 2002. The evidence in this respect does not, on the balance of probabilities, lead me to find that the Tribunal deliberately disregarded the material forwarded by the applicant. 36 Although the covering sheet to the fax, which included the letter, made reference to a two page letter, the text of the letter itself at a glance, could have been seen as just a covering note for the attached materials. It was submitted for the applicant that any Tribunal which actually read the material provided would have been aware that the letter had not been properly received. Neither the Tribunal nor its staff had made any request for a further copy of the letter. In its decision the Tribunal is said to have made no reference to any of the material provided which comprised material from the Marz-e-Porgohar website. If the Tribunal had actually read and had regard to the material received it could not have concluded, to it was said, that the release of Mr Farahanipour in detention and his subsequent residency in this United States made it improbable that the authorities would not be interested in a person with the profile claimed by the applicant including his claimed allegiance. It was submitted that the proper conclusion to be drawn was that the Tribunal did not and could not have read the material provided by the applicant and therefore did not have regard to it and was either unaware of or not concerned that the letter had not been properly received. 37 The Tribunal made no reference in its reasons to the materials submitted on behalf of the applicant on 13 January 2002. However, those materials were not inconsistent with the essential facts found by the Tribunal and referred to in its reasons for decision. Farahanipour was incarcerated for a time and released on bail then fled to the United States. The materials showed that he subsequently published articles about his incarceration and the mistreatment of himself and others. They also indicated that the organisation Marz-e-Porgohar maintains an active website. Given the absence of any significant inconsistency between those materials and the findings of fact made by the Tribunal, I am not persuaded on the balance of probability that the Tribunal did fail to have regard to them. Consistently with its reasons, it could have taken the view that their content did not impact upon the central issues which related to the position of the applicant rather than that of Farahanipour. While it was apparent on a careful reading of the fax covering sheet that the letter comprised two pages, rather than one, a quick glance at the letter itself might have given the false impression that it was a short covering memo. 38 Even if, contrary to my primary view, the evidence supported a finding that the Tribunal failed to have regard to the materials, it would not support a finding that it did so in bad faith, which in this context would require a deliberate disregard of the applicant's case. In my opinion therefore, this ground of asserted want of bona fides on the part of the Tribunal fails.

Jurisdictional Error 39 The second ground as particularised takes issue with the Tribunal's logic in relation to its finding that the applicant had fabricated his claim to have left Iran illegally. It also attacks the Tribunal's reasoning in so far as it inferred from a Reuters News Service of 10 April 2000 that many students have been able to demonstrate and take other peaceful action in support of reformist causes without facing persecution. These criticisms go to the merits rather than to any ground of judicial review and, in any event, do not fall within the limited grounds of review available since the enactment of s 474 as construed in NAAV. 40 The final particular of jurisdictional error relates to the asserted failure by the Tribunal to have regard to the materials sent to it by the applicant. This is said to have constituted a failure of natural justice. But want of natural justice is not now available as a ground of review in light of the majority view in NAAV. 41 It is also said that there was a failure to comply with the requirements of s 414 and s 424 of the Act. For the reasons I have already set out I am not satisfied that the Tribunal did fail to consider the materials. This ground also fails.

Conclusion 42 For the preceding reasons the application will be dismissed. The applicant is to pay the respondent's costs of the application. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Solicitor for the Respondent: Australian Government Solicitor