WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs

24 It should be noted that the DFAT report acknowledged that investigations by Iranian authorities continued well after July 1999 and that as at 22 September 1999 "further arrests have been or are being made in connection with the case." The RRT gave weight to the fact that before Farahanipour left Iran to go to the United States of America, (where presumably he was admitted to that country as a refugee), he had been released after a period of detention that had commenced on 13 July 1999. The RRT said: "Such an outcome makes it even less probable that the authorities would continue to pursue a person with the profile claimed by the [appellant] even if they were to have known somehow of his allegiance to Marz-e-Porgohar and of peaceful pursuit of its cause." 25 The RRT found that the appellant would not have been released without then being charged if he had been of any real interest to the authorities. It found that he had fabricated claims of being taken into custody in September 1999 by reason of his political opinions "or for any other Convention related reason". It found that the appellant "grossly exaggerated" his links to Farahanipour and his group "in order to provide a plank for seeking asylum". 26 The RRT was not satisfied that the appellant had left Iran illegally. It also found that he fabricated that claim. It found that he left legally "and that he was able to do so because he was not wanted by the authorities for political or other reasons". For that conclusion it relied on information as to the stringent checks carried out by Iranian authorities on persons departing Iran at Tehran airport, despite the fact that the appellant did not claim to have left Iran by air. 27 Finally, the RRT considered that should the Iranian authorities learn of the appellant's claim for asylum, he would not face persecution as a result of the authorities receiving that information. 28 Counsel for the appellant submitted that the failure of the RRT to give the appellant an opportunity to respond to the material on which it intended to rely to reach the finding that the appellant was not a refugee, constituted such procedural unfairness that it involved jurisdictional error on the part of the RRT. Counsel submitted that had the appellant been referred to the Reuters report and the contention of the RRT that the report supported a conclusion that the appellant had not been detained by reason of being a part of the student protests or for his involvement with the illegal Marz-e-Porgohar group, the respondent would have had the opportunity to divert the RRT from error by pointing out that the report was wholly unable to support that conclusion and to the contrary, exposed the impotence of the elected government of Iran to protect journalists and others from harsh consequences, imposed judicially or extra-judicially by direction of the theocratic regime, if they expressed any criticism of that regime. 29 It was not in issue that the RRT did not refer the Reuters report to the appellant as material upon which it intended to rely to reach its conclusion in the matter. The Reuters report was not material relied upon or referred to in the decision of the delegate or in the first decision of the RRT. The appellant, therefore, could not have been expected to know of the material or, more particularly, to have had any understanding that the RRT would purport to use it in the manner in which it did. 30 Counsel for the respondent submitted that s 424A of the Act did not require that the RRT give the appellant notice of its intention to refer to the country information. He relied in particular on s 424A(3) of the Act. 31 Section 424A of the Act provides as follows: "(1) Subject to subsection (3), the Tribunal must:

(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(2) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b) that the applicant gave for the purpose of the application; or

32 The RRT relied upon country information in the following way: · to show that occasional mass demonstrations continue to occur in favour of political reform (a factor which the RRT said it had regard to in reaching "its ultimate finding" that the appellant is not a refugee);

· to show that demonstrations and other peaceful action has been able to occur in support of reformist causes without persecution of those involved;

· to show that where demonstrations have occurred, the interest of the authorities has been confined to those demonstrators with a high profile.

33 In respect of the second and third points in the preceding paragraph the RRT said that: "While accepting that the applicant and other group members were among those who participated in those demonstrations held in July 1999, the Tribunal does not accept, in light of the aforementioned information, that he was, as he initially claimed, detained some two months later by reason of such participation."

34 It is clear that the RRT relied on country information in the course of dismissing the appellant's claims. In doing so, without advising the appellant of its intention to rely on that material and without offering him an opportunity to comment upon it, the RRT denied the appellant procedural fairness. 35 As was said in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 at (27): 'It is well established that the rules of natural justice require that a decision-maker bring to an applicant's attention the critical factor on which the decision is likely to turn so that he or she may have an opportunity of dealing with it: see Kioa v West (1985) 159 CLR 550 at 587; Broussard v Minister for Immigration and Ethnic Affairs (1989) 21 FCR 472 at 481; and Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557 and the cases there cited.'

36 Section 424A of the Act, in the form the legislation took prior to July 2002 (which includes this matter), did not represent a complete statement of the RRT's obligation to afford procedural fairness to an applicant for a protection visa. (Compare s 422B of the Act, which was introduced with effect from 3 July 2002.) 37 Counsel for the appellant submitted that the decision of a Full Court of this Court in WAAJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 409 mandated a contrary conclusion as to the effect of s 424A. 38 We are unable to agree. The argument addressed in WAAJ was limited to whether failure to comply with the requirements of s 424A provided ground for review under the Act. There is no express statement in s 424A that common law rights are revoked by the section and operation of the section does not depend upon an implication to that effect. 39 Furthermore, when the High Court determined in Re: Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, that the Act was not to be read as an exhaustive code that excluded obligations of proceedural fairness it was considering decision-making provisions of the Act to which s 57 of the Act applied, a provision in equivalent terms to those set out in s 424A. 40 It follows that a breach of the rules of natural justice occurred in the manner in which the RRT conducted its proceeding. (See: Miah per Gaudron J at [99], McHugh J at [143], Kirby J at [196]; Muin v Refugee Review Tribunal (2002) 190 ALR 601 per Gleeson CJ at [30], Gaudron J at [64], McHugh J at [137]-[138], Kirby J at [236].) 41 As Gleeson CJ said in Re: Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82at [2]‑[4]: 'The issues are whether, in the events that occurred, involving an erroneous statement by the Refugee Review Tribunal as to the material which was before the tribunal, there was a denial of procedural fairness, and, if so, whether the consequence is that prohibition should go under s 75(v) of the Constitution. As to the first issue, the statement in question covered a matter which had a bearing upon the credibility of the prosecutor. It misled the prosecutor, as a consequence of which he was deprived of the opportunity to answer, by evidence and argument, adverse inferences which were based in part upon a misunderstanding of his previous conduct. Had he been given an opportunity to correct the misunderstanding, a different view might have been taken as to his credibility. It cannot be concluded that the denial of that opportunity made no difference to the outcome of the proceeding. The tribunal's conclusion that certain information given by the prosecutor was a concoction was based, in part, upon an unwarranted assumption as to what the prosecutor had previously told various authorities; an assumption which, according to the evidence, the prosecutor could and would have corrected had he not been inadvertently misled by the tribunal. It is possible that, even if the prosecutor had been given an opportunity to deal with the point, the tribunal's ultimate conclusion would have been the same. But no one can be sure of that. Decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive. As a result of the conduct of the tribunal, the prosecutor was deprived of a fair opportunity of presenting his case, and of correcting an erroneous and unfavourable factual assumption relevant to his credibility. The circumstance that this resulted from an innocent misstatement does not alter the position. The question concerns the nature and extent of the statutory power exercised by the tribunal, and the condition that the power be exercised in a manner which was procedurally fair; not the good faith of the tribunal.' 42 At the time this matter was determined by the primary Judge, his Honour was bound by the decision of a Full Court of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 193 ALR 449. Therefore, no submission was put to his Honour that the decision of the RRT was other than a "privative clause decision" to which s 474 of the Act applied. 43 Counsel for the Minister conceded that the subsequent decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24meant that a purported decision by the RRT which involved a breach of the rules of natural justice and jurisdictional error would not be a "privative clause decision", and, therefore, orders for the issue of prerogative or constitutional writs may be made by this Court in respect of such a decision. 44 Counsel for the appellant further submitted that the manner in which the RRT dealt with the Reuters report, which described circumstances in Iran subsequent to the departure of the appellant from Iran and, therefore, was relevant to the consideration of the RRT of whether the appellant's present fear of persecution if returned to Iran was well-founded, revealed that the RRT had not addressed the proper question before it nor considered material that was relevant to that issue. 45 The material put before the Tribunal by the appellant's solicitor showed that on 24 July 1999 the Iranian Information Ministry had issued the following statement in relation to Farahanipour and the Marz-e-Porgohar group: 'Farahanipour, through some other dissident individuals, has been connected to some anti-revolutionary formations abroad and to achieve their objectives with cooperation of some other persons, has formed an organisation called "Marz-e-Porgohar", an offshoot of Pan Iranist Party.' 46 Other material supplied to the RRT by the appellant's solicitor suggested that if Farahanipour's activities in the United States had been monitored by Iranian security services after he left Iran, it would have been understood by those authorities that Farahanipour appeared to have the support of the son of the former Shah of Iran, a resident of the United States since the rule of the Shah was overthrown by the existing regime. The material also showed that Farahanipour's flight from Iran enabled him to make widespread publication of strong criticism of the Iranian regime. The implication of the material submitted by the appellant's solicitor, and the submissions made in the solicitor's letter to the RRT of the 13 January 2002, was to the effect that the issue that the RRT had to consider was whether the fact that Farahanipour had support in the United States for his opposition to the Iranian regime, and whether the ferocity of Farahanipour's criticism of the regime and the extent of its distribution, would have led Iranian authorities to reassess whether Farahanipour and his associates, in particular members of the Marz-e-Porgohar group, posed a danger to the regime. That is to say the question whether the fear of future persecution held by the appellant had to be addressed by having regard also to events that had occurred subsequent to the appellant's departure from Iran. 47 Accordingly, having accepted that the appellant had a connection with the Marz-e-Porgohar group, in determining whether it was satisfied that there was a real risk that the appellant would suffer persecution if returned to Iran, the RRT had to consider whether there was a real risk that the appellant's role with Marz-e-Porgohar and the extent of his knowledge of its activities, may have become a question of importance to Iranian security forces, thereby presenting the risk that the appellant would be interrogated upon return to Iran and the further risk that the treatment he may suffer in consequence may include curtailment of liberty, or worse, and constitute persecution for reason of imputed political opinion. Consideration of this question was not undertaken by the RRT. Accordingly it may be said that the review procedure conducted by the RRT miscarried in a fundamental respect resulting in a decision flawed by jurisdictional error and a decision not authorised by the Act. (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]; W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCAFC 103 at [33]; SDAV v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 43 at [35]-[38].) 48 The submissions to the RRT contained in the letter from the appellant's solicitor of 13 January 2002, referred to above, did not reach the Tribunal because of a fault in the RRT's facsimile transmission equipment. Had those submissions been received by the RRT they would have directed the mind of the RRT to the foregoing question. Counsel for the appellant submitted that a breach of natural justice occurred as a result. It may be accepted that notwithstanding that the RRT was unaware of the defect in its process, continuation of the proceeding in the absence of the submissions from the appellant's solicitor, when that party assumed that the RRT had received and would consider those submissions, may, in certain circumstances constitute the adoption of an unfair procedure. (See: Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 187 ALR 117 per Gleeson CJ at [14].) 49 In the end, however, whether or not a further breach of natural justice occurred in that regard, the purported decision of the RRT involved jurisdictional error in that the RRT failed to consider the correct question it was bound to determine and failed to perform the function required of it by the Act. 50 Counsel for the appellant also submitted that there had been a breach of the rules of natural justice in the failure of the RRT to give the appellant the opportunity to deal with concerns held by the RRT, but not disclosed to the appellant, regarding the "genuineness" of a document submitted by the appellant to the Tribunal in support of his application. The document was an email dated 5 November 2001, purportedly from Farahanipour as executive director of Marz-e-Porgohar, forwarded at the request of parties assisting the appellant. In relevant respects the email read as follows: 'In the aftermath of the student uprising of 1999, many political activists such as [the appellant] 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. … Please feel free to contact us if you need more information.' The email provided postal, email and website addresses and telephone and facsimile numbers in the United States. 51 The RRT stated that the email "does not indicate any particular relationship between the [appellant] and the writer and is general about any role he played in the group". It might be said that the RRT appeared to ignore that the communication did record that Farahanipour was aware of the appellant's imprisonment at the relevant time and supported the appellant's account in that regard. The RRT made the further comment that "[d]espite the [appellant's] claimed intimate association with the writer the document was not produced until the time of the Federal Court hearing of the [appellant's] case". The RRT said that after having regard to the unsatisfactory nature of the appellant's evidence and the "timing of the document" it was "not satisfied as to [the] genuineness" of the document. 52 On its face the foregoing was a statement by the RRT the document was not authentic. This was not a case where dishonesty on the part of the appellant had been demonstrated thereby providing support for the further conclusion that the appellant had arranged for the preparation, and tender of, a non-authentic, or forged, document which the RRT could disregard. There was no finding by the RRT that the evidence of the appellant was so discredited that any purportedly corroborative material presented on his behalf could be discarded without further analysis. (cf: Re: Minister for Immigration and Multicultural Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [12], McHugh, Gummow JJ at [49].) 53 The relevance the RRT saw in the "timing" of the document is wholly elusive. The only point put to the appellant in that regard was the mistaken belief of the RRT as to the date of the document and its erroneous understanding that the appellant had had possession of a document for one year and had not produced it in that time. The appellant's solicitor attempted to correct the RRT's misapprehension in the course of the review proceeding, but the only explanation for the RRT's reference to the "timing" of the document is that the mistake of the RRT continued into the RRT's deliberations. 54 If, in truth, the RRT did not believe that the document was authentic, the RRT should have advised the appellant and his solicitor accordingly and allowed the appellant, through his solicitor, to make any inquiries that were necessary to enable the appellant to produce further material to the RRT to satisfy the RRT in respect of the document. (See: Meadows per Einfeld J at 380, von Doussa J at 383, Merkel J at 387-388). Of course, it was open to the RRT to take up the invitation set out in the document to make direct contact with the purported author, using the telephone, fax, email or website details provided in the document. At the same time the RRT could have raised any doubt the RRT held as to the link between the appellant and the author of the document. Those steps were straight-forward and could have been done with minimum delay and effort by the RRT if it decided to act itself instead of giving the appellant the opportunity to deal with the RRT's doubts about the authenticity of the appellant's document. 55 Alternatively, perhaps the RRT was not using the word "genuineness" in the sense of lack of authenticity in the document. To make a bare assertion that the document was not genuine, that is to say, a forgery, would have been an arbitrary and unreasoned conclusion by the RRT unsupported by a scintilla of material. If the RRT had acted in such a manner it would have raised the perception that the findings made by the RRT in that regard had been moulded to support a particular conclusion. (See: Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [42].) If that were so the RRT would not have performed the duty imposed upon it by the Act and the purported decision would be set aside as one made in the absence of authority or jurisdiction. 56 If, however, the RRT used the word "genuineness" in a loose sense intending to convey not that the document was a forgery but that the weight to be given to the content of the document provided no support to the "genuineness" of the appellant's claim as to his degree of connection or involvement with Farahanipour, or the Marz-e-Porgohar group, then perhaps that was a conclusion available to the RRT, notwithstanding the inappropriate or infelicitous expression of that conclusion. 57 Having regard to the reasons of the RRT in their entirety the latter construction should be accepted. 58 For the foregoing reasons we would allow the appeal, set aside the decision of the learned primary Judge, quash the decision of the RRT, and direct that the matter be returned to the RRT for reconsideration according to law. I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 15 August 2003 Counsel for the Appellant: HNH Christie

Solicitor for the Respondent: Australian Government Solicitor