WAEV v Minister for Immigration and Multicultural and Indigenous Affairs

The Proceedings at First Instance. 17 The learned Primary Judge summarised briefly the claims which the appellant had made and the reasons which the Tribunal had given for rejecting these claims. His Honour found, with respect correctly, no error of law in the Tribunal taking into account the difference between the claims made at the initial interview and later. His Honour referred to an assertion, made at the hearing and not the subject of evidence or oath, that the appellant (who appeared on his own behalf) wanted to present a photograph to the Tribunal. The Tribunal had not accepted the photograph. We will return later to that matter. The learned Primary Judge found that, in the absence of any evidence on the matter, no error of procedure on the part of the Tribunal had been demonstrated. Indeed his Honour found that no error of law was to be found in the Tribunal's reasons and dismissed the application. It is from this decision that the appellant now appeals.

The Hearing of the Appeal on 19 February 2003 18 At the hearing of the appeal, the appellant was again unrepresented. 19 The appellant asserted to the Court both that he had not been afforded the opportunity of tendering to the Tribunal a photograph that was critical to his case and which corroborated it and that his advisor was refused permission to make submissions to the Tribunal at the end of the Tribunal's hearing. Because of the seriousness of the appellant's complaint the Court made an order under Order 80 of the Federal Court Rules that the appeal be referred to pro bono counsel for consideration and for counsel to appear on his behalf. The Court accordingly adjourned the appeal to permit this to happen.

The Adjourned Appeal 20 On the adjourned appeal the appellant was represented by Mr O'Connor QC as pro bono counsel. Affidavits had, in the meantime, been filed on the appellant's behalf and an amended application (by leave given at the adjourned hearing) and an amended notice of appeal (also with leave given at the adjourned hearing) were filed. Four grounds of appeal were then raised. These may shortly be summarised as follows: 1) That the Tribunal had acted outside its jurisdiction in refusing to permit the appellant to tender a photograph which corroborated his claims. 2) That the Tribunal acted outside its jurisdiction by refusing to permit the applicant's advisor to make oral submissions at the hearing. 3) That the Tribunal erred in law or otherwise committed a jurisdictional error in not giving any weight to a letter from the appellant's solicitors concerning the father's arrest. 4) That the Tribunal acted outside its jurisdiction by not considering whether the appellant's family constituted a social group within the meaning of Article 1(A)(2) of the Convention. 21 These submissions were put in alternative ways having regard to the grounds of review set out in s 476 of the Act. We shall deal with each of these submissions in turn.

1. The Photograph 22 The photograph in question was said to be a photograph of the outside of the Hafez printing house building where, according to the appellant's evidence, his uncle had conducted the printing business. Underneath the name of the printing house were words which translated into English read, "This shop is closed for disseminating lies against the Government. The Revolutionary Court has issued the order." 23 According to an affidavit of the appellant, this photograph had been received by him by facsimile transmission from his family in Iran five days before the Tribunal hearing. The hearing took place on 23 May 2001 at Derby, Western Australia. The Tribunal member and the appellant were together in the hearing room in Derby. The appellant's advisor Dr Jabiri was in Sydney and communicated by telephone with the Tribunal. An interpreter was also present in Sydney with Dr Jabiri and participated in the telephone conference. 24 According to the affidavit of the appellant (and he was not the subject of cross examination), the appellant and Dr Jabiri had discussed the photograph before the hearing. The appellant told Dr Jabiri that he wished to tender a copy of the photograph because it corroborated his account that the printing house had been closed down by the Iranian authorities, a matter which the Tribunal ultimately did not accept as true. 25 The appellant said that at the time the Tribunal having commenced its proceeding, but before the tape recorder was switched on, the appellant had been asked by a man who was a secretary or associate to the Tribunal in the presence of the member whether the appellant intended to tender any documents during the hearing. The appellant said that he told the enquirer that he wished to tender the copy of the photograph. The secretary or associate then told the appellant that the member would be advised. It might be interpolated here that it is unclear on the evidence whether the member heard the conversation. Although the conversation is said to have taken place in the presence of the member, the fact that the secretary or associate said he would tell the member of the proposed tender, rather suggests that the member did not hear the conversation. 26 The appellant said that he was sure that the secretary or associate then made a written record of the appellant's desire to tender the copy. The note, if made, is not part of the Tribunal's records. 27 The transcript of the proceedings before the Tribunal was tendered in evidence before us. One thing is clear. For whatever reason, the atmosphere at the Tribunal hearing was far from pleasant. It may be that the Tribunal member had participated in a number of hearings that day, or previously, and had become jaded. If that is the case then we can only say that it would be desirable that Tribunal members do not sit in a succession of appeals which may affect their equanimity. The transcript also suggests that for whatever reason the Tribunal member was somewhat confused when dealing with factual matters. For example, at one stage in the hearing the Tribunal member appeared to believe that the appellant was talking of his own arrest when in fact it is clear from the transcript that the appellant was talking of the arrest of his father. Although it may be surmised that the Tribunal's view of the appellant's credit was not enhanced by that misunderstanding it is not a point relevant to the grounds of appeal. 28 After the member had concluded asking questions of the appellant, she turned to Dr Jabiri and said to him that she presumed he wished to make submissions within the usual seven days. Dr Jabiri assented but said that he would like to put in some words in this regard. He then said that it was his view that the applicant's case was plausible and that he had had some association with the MKO. He made some further comments to which the Tribunal member replied that his "submission is not to re-explain the evidence that you have written with the applicant in regard to his submission." The Tribunal member said that she would look at those herself. She continued that if the advisor was to make a submission he was to direct it to any inconsistencies or problems the advisor had with the way the Tribunal member had interpreted the evidence. The interchange between them continued as follows: Dr Jabiri: "But if I may say, I am terribly sorry, but yesterday and today you are not giving me my right to speak and I think this is absolute my right as the applicant's advisor." Tribunal member: "Mr, Mr Jabiri. Excuse me! Mr Jabiri - Excuse me! Excuse me! It is my entitlement to decide whether or not you can open your mouth in one of these hearings. Dr Jabiri: "With your permission - then you are not allowing me to open my mouth." Tribunal member: "Mr Jabiri, as you are well aware, you are a migration agent and you understand the situation of what a member can and cannot do in a hearing. Now Mr Jabiri, if you want to make a submission, I am giving you seven days in writing to make that submission." Dr Jabiri: "Well, OK. Thank you very much. I take it that you're not allowing me to speak at this session. You are only allowing me to put in writing, isn't it so?" Tribunal member: "Mr Jabiri, if you put it in writing, then we won't dispute whether or not I have misunderstood something that you have said." Dr Jabiri: "So, in this regard you are not allowing me to speak." Tribunal member: "I am giving you the opportunity to put it very succinctly in writing. When it is in writing, nobody can dispute what was said. Do you understand what I am saying, Mr Jabiri." Dr Jabiri: "Well, I'm sorry, I don't dispute you." 29 There was more in this vein. The Tribunal member then asked the appellant whether he had understood what the Tribunal member was saying. The appellant added some factual comments not presently relevant. Ultimately the Tribunal member gave Dr Jabiri seven days to file submissions. The transcript concludes with the Tribunal member asking whether Dr Jabiri was still present in the room in Sydney. The interpreter indicated that he was. The Tribunal member then asked Dr Jabiri whether he had heard what she had said. Dr Jabiri answered that he had. The Tribunal member then made a parting comment, "Thank you, Mr Jabiri for answering eventually. The hearing is now completed." 30 It is clear from the transcript that the photograph did not get tendered. 31 The appellant said further in his evidence that Dr Jabiri had a copy of the photograph and that the appellant believed that if the appellant did not produce the photograph, Dr Jabiri would. 32 Dr Jabiri did not give evidence. He was overseas in America concerned with advising on the setting up of a government for the reconstruction of Iraq. Within the time which the Court set for the filing of evidence it was impossible for senior counsel to obtain an affidavit from him. An affidavit was filed however by a research and practice associate of Dr Jabiri who had worked on the appellant's case and who had apparently written the submissions ultimately filed with the Tribunal. He confirmed that, while the case was being prepared for hearing at the Tribunal, a copy of the facsimile had been received. He said that at the time, Dr Jabiri had appeared in a number of hearings conducted by the member who presided on the present hearing who would sit on at least two hearings a day for up to five days at a time. He said that the facsimile had been discussed with Dr Jabiri and in a discussion Dr Jabiri had said that he would table the photograph at the hearing. The photograph was not faxed to the Tribunal with the submission nor with an additional statement of the appellant which was also faxed to the Tribunal. 33 According to the associate Dr Jabiri returned from the hearing upset, saying that the Tribunal member had refused him permission to speak. Dr Jabiri also said that he had been unable formally to present the photograph and that he had a tight deadline to prepare a post-hearing submission. 34 Apparently Dr Jabiri and the appellant spoke prior to the submission being sent in. It seems that no reference was made in that conversation to the photograph. For whatever reason, and it is not explained in the evidence, the photograph was not included in the written submission which Dr Jabiri lodged with the Tribunal within the time given to him. There is little point in speculating why this happened. It is most likely, particularly if Dr Jabiri had a number of cases before the Tribunal in which he had to prepare written submissions, that the tender of the photograph was simply overlooked. 35 There is no doubt that the photograph was significant to the appellant's case. It provided clear corroboration of the appellant's claim, if accepted as genuine, that the uncle's printing business had been shut down by order of the Revolutionary Court. It is possible, had it been before the Tribunal that the Tribunal member might have accepted the appellant's claims and not rejected them. 36 On behalf of the appellant it was submitted that on the facts proven the Tribunal should have asked the appellant whether he had any materials he wished to tender in which case the appellant or Dr Jabiri would have had the opportunity to tender the photograph. It is said that the failure to ensure the tender of the photograph was a ground of review under ss 476(1)(a), (b) and (c) and also s 425(1) of the Act. Emphasis was placed particularly upon s 476(1)(c) because it was said that the failure to ensure the tender of the photograph constituted a jurisdictional error. 37 It was also submitted that the failure to ensure the tender of the copy of the photograph amounted to a denial of procedural fairness, particularly because the appellant had, through the associate or secretary, notified the Tribunal of the intention to rely upon the document in support of his case. However, procedural fairness was not stressed as a ground of review, having regard to s 476(2)(a) of the Act which expressly denies the availability of breach of natural justice as a ground of judicial review of a decision of the Tribunal. However, it was submitted that notwithstanding the provisions of s 476(2)(a) a breach of the rules of natural justice involves jurisdictional error which itself is a specific ground of review. The submission was, accordingly that the provisions of s 476(2)(a), while specifically excluding natural justice as a ground of review, did not preclude an applicant from relying upon some other ground of review such as jurisdictional error in a case where that jurisdictional error involved itself a denial of natural justice. Reference was made to Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 at [45] where Gaudron, McHugh, Gummow, Kirby and Hayne JJ make it clear that a breach of the requirement of natural justice will found a complaint of jurisdictional error. Reference is made also to Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003)198 ALR 59. 38 For present purposes it can be accepted that an applicant for judicial review might succeed in establishing jurisdictional error under s 476(1)(c) as a ground of review, notwithstanding that the jurisdictional error amounts to a denial of natural justice. It is unnecessary to decide whether this is so, although it must be said that decisions of the High Court acting in its original jurisdiction may not be of assistance, since it would be a ground for the High Court to issue what may be referred to as a constitutional writ acting under s 75(v) of the Constitution that the Tribunal had acted in excess of jurisdiction and that the High Court would not be precluded from so doing by s 476(2)(a). However, as we have said, it is sufficient here to accept without deciding it the appellant's submission that if the present case involved a denial of natural justice, a ground of review would exist notwithstanding the provisions of s 476(2)(a) of the Act. 39 In the present case, however, the appellant failed to establish that the Tribunal denied natural justice in refusing to permit him to tender the photograph and accordingly made a jurisdictional error. The evidence does not make clear whether the Tribunal member knew of the appellant's desire at the commencement of the hearing to tender the photograph. Indeed, it seems unlikely that the Tribunal member was aware of the photograph. 40 It may be accepted that the appellant had a conversation with the secretary or associate. Not surprisingly the secretary had no recollection of the conversation. But no attempt was made either by the appellant or by Dr Jabiri to seek to tender the photograph either at the hearing or later when written submissions were prepared. The opportunity was there for Dr Jabiri to do so in the written submissions which he filed. It was also there for the appellant to include the photograph with his written statement. For whatever reason neither did so. The present is not a case where the appellant was refused the opportunity to tender the photograph by the Tribunal. It is simply a case where for some reason which is not explained the appellant did not seek to tender it. It can not be said that the Tribunal's process in the circumstances, so far as it related to the possible tender of the photograph, was unfair. Ultimately fairness or rather unfairness is a necessary ingredient of a denial of procedural fairness. (cf: Kioa v West (1985) 159 CLR 550 per Mason J at 585.) 41 This ground of review must therefore fail.

2. Failure to Permit Oral Submissions 42 It is clearly undesirable that a Tribunal refuse to permit a representative making oral submissions without good reason. As senior counsel has argued for the appellant, there is an immediacy to oral submissions for the submissions can deal with matters just raised in the course of a hearing. That immediacy may be lost when submissions are reduced to writing and considered, perhaps weeks later. 43 But it is one thing to say that it is undesirable that the Tribunal refuse permission for an applicant to make oral submissions and another to say that such refusal amounts to a jurisdictional error or because it involves a denial of natural justice. 44 The nature and content of natural justice will depend upon all the circumstances of the case. (See: Kioa v West per Mason J at 585.) Clearly it will be a requirement of natural justice, unless precluded by statute, that a person, particularly one seeking to establish that he or she is a person entitled to protection obligations be afforded a reasonable opportunity to put his or her case. But while there is a need for a fair and flexible procedure to be adopted to permit this to happen, it cannot be said that the opportunity to put a case in writing is a denial of the opportunity to put the case itself. 45 It is not suggested that the Tribunal member refused to read submissions that were put to her. In the absence of evidence to the contrary, it may be assumed that she had good reason for asking that submissions be put in writing. It is unclear from the transcript what lay behind the suggestion that in some way there was a possibility that she might be misunderstood. All that need be said in the present case is that, assuming it is open to the appellant to raise denial of natural justice as a ground of review under the heading of excess of jurisdiction in s 476(1)(c), the present facts do not raise a denial of natural justice and accordingly this ground of review must also fail.

3. The Solicitor's Letter 46 The solicitor's letter, to which this ground of review relates, certified that the appellant's father had been arrested on 17/07/2000 "due to his confrontation with the government guards and was released on bail on 24/07/2000 to have the process of his file maintained and finalised by the Revolutionary Court." 47 In the course of its reasons, the Tribunal said of the letter and its contents: "As I do not accept the applicant's claims are plausible in relation to his distribution activity I place no weight on the letter from his father's solicitor indicating his father had been arrested for confrontation with government guards. It does not corroborate this arrest was due to any activities of the applicant or his uncle." 48 A logical difficulty would face a tribunal which purported to ignore, or reject, the evidence of one person merely because it found the evidence of another to be implausible. It is unlikely that in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 the High Court intended to say otherwise and the divergent views in that case, between the majority on the one hand and Justice Kirby on the other, may be seen to depend on a different interpretation of the Tribunal's decision. The present case, however, would not seem to be one where the Tribunal really rejected the letter because of the implausibility of the appellant's case. Rather the Tribunal appears to have taken the view that no weight should be given to the letter because, while it did corroborate that the father had been arrested, it did not tell anything about the circumstances of the arrest and particularly the relationship between the arrest on the one part and the activities of the appellant or his uncle on the other. In other words, on one view, the letter added little to the appellant's own evidence, although on another view the proximity of the arrest to the events described by the appellant, and the absence of any other material, left little room for an alternative explanation for the arrest of the father. 49 No error of law is revealed by the rejection or by the Tribunal placing no weight on the letter. The question of what weight the Tribunal should place on the letter is a matter for it and not this Court.

4. The Family as a Social Group 50 The Court did not grant leave to the appellant to raise on the appeal an argument not raised below that the Tribunal had failed to address the issue whether the family of the appellant could be a particular social group, the membership of which provided the ground of persecution. 51 It may be accepted that in the circumstances of a particular case, the family of an applicant may be a particular social group for the purposes of the Conventio. (See: WAEZ of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 341 per Lee, Hill and Hely JJ at [39].) 52 However, there is a difficulty in criticising a Tribunal for failing to consider an argument which is not raised by an applicant before it, at least if the argument is not one which is self-evident. It is more difficult to do so when the foundation for the submission is not available. In the present case the Tribunal did not err by not considering whether the appellant had a well founded fear of persecution by virtue of being a member of the family. First it may be said the Tribunal had found that the authorities in Iran had no interest in the appellant when he left Iran. Indeed, the Tribunal found he left Iran because he was unhappy with his lifestyle there. Secondly, the Tribunal found that the family did not have an anti-regime profile. Thirdly, the Tribunal found that the uncle had not been imprisoned and had not been involved in the printing and distribution activities claimed. Fourthly, the Tribunal did not find that the appellant had any well founded fear of persecution for any reason. 53 In these circumstances it is hard to see why the Tribunal would be bound to consider whether the appellant's family was a particular social group. That would be a merely hypothetical issue. The ground of review therefore fails.

Conclusion 54 There is nothing in the judgment of the learned primary Judge which discloses that his Honour erred in dismissing the application for judicial review. Such criticisms as the appellant made before his Honour were criticisms of factual matters. His Honour rightly rejected the appellant's invitation to embark upon a merit's review as must we. Accordingly, the appeal must be dismissed with costs. 55 Having regard to the remarks we have made above at [35], consideration may be given by those advising the appellant, to whether a submission should be made to the Minister inviting the Minister to exercise his discretion under s 48B or s 417 of the Act if the Minister considers that there is a risk that a serious injustice to the appellant may have occurred in the circumstances described. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 12 August 2003 Counsel for the Appellant R K O'Connor QC (pro bono publico)

Counsel for the Respondent: A A Jenshel (19 February 2003) M T Ritter (18 July 2003)

Solicitor for the Respondent: Australian Government Solicitor

Dates of Hearing: 19 February 2003, 18 July 2003