WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT THE COURT: 1 The appellant appeals from a judgment of French J which dismissed an application for review under Pt 8 of the Migration Act 1958 (Cth) ("the Act") of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the Minister not to grant the appellant a protection visa. 2 The case is governed by the Act as it stood prior to the amendments in October 2001. 3 The appellant is a citizen of Iran. His wife and their two children were also applicants for protection visas. The appellant's claim to be a refugee within the meaning of the Refugees Convention asserted a well-founded fear of persecution on the ground of political opinion, namely support, actual or imputed, for the Mujahadeen. 4 In the amended notice of appeal the sole ground relied on was that his Honour erred in holding that the Tribunal had not committed an error of law or exceeded its jurisdiction in failing to consider whether to make enquiries pursuant to s 427(1)(d) of the Act. It was said that in the particular circumstances of the case the primary judge should have held that the Tribunal was required to consider whether it should make such enquiries as were necessary to establish whether the appellant had, as he claimed, refrained from disclosing the nature and extent of his association with the Mujahadeen on the basis of legal advice given to him by the person who had been appointed as his migration agent. 5 Section 427(1)(d) provides: (1) For the purpose of the review of a decision, the Tribunal may: (d require the Secretary [to the Department - see s 5]to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination." (Emphasis added) 6 The appellant was a prisoner of war in Iraq between 1986 and 1990. While there he joined the Mujahadeen. He claimed that this resulted in discrimination and persecutory treatment when he was repatriated to Iran. 7 The appellant arrived in Australia without lawful authority on 3 November 2000. In his post-arrival interview with the Department on 12 November 2000 the appellant made the following statement in the part of the form requiring details of association or involvement in activities against any government or political group: "When I was captured as POW by Iraqis I was kept in POW camps under difficult and inhumane conditions. When the Iranian gov't signed the UN treaty to stop fighting Mujaheddin (sic) would come to the POW camps with mini buses and encourage the POWs to leave the camp and go with them. Those who were really suffering from the conditions, or were interested to get involved in political activities against the Iranian Government would leave the POW camps and go with them. So this is what I did as well. I had good reasons to do so, because I was sick and tired of the camp, and also because of my political aspirations. I was given military training by the Mujaheddin.(sic) They were giving us political trainings (sic) as well. I was there about 2-3 months." (Emphasis added) 8 With his application for a protection visa filed on 23 November 2000 the appellant included a statement prepared by Registered Migration Agent Michael Thornton of Macpherson & Kelley, solicitors, which commenced with the following: "I did not feel secure in Iran. While I was a captive in Iraq during the war between 1986 and 1990 I left the prisoner of war camp and went and joined the Mujahadeen. While I was in the POW camp people from the Mujahadeen used to come to the camp to try and recruit people for their organisation. A number of my friends and I joined them. We did this because I had been 5 years in the camp and was sick (with severe diarrhoea) and distressed by this long period of imprisonment. We wanted to improve our conditions and perhaps find a way of escaping and returning to Iran. I went along with them and at their request, studied with them and undertook one of their courses called the Military Education and Political Course. Many of the Iranian POWs did this. 9 Before the primary judge, although not before us, there was a tape of the proceedings in the Tribunal. The following summary is based on that given by his Honour, the accuracy of which was not in question. 10 The appellant told the Tribunal that he had been advised by his lawyer that his case showed his involvement in many activities with the Mujahadeen and that if the (Australian) government found out about it he might be considered a major or original member of that organisation. Because the government regarded the Mujahadeen as terrorists this would not be good for the appellant. He told the Tribunal that this was why he had not previously advanced his real case with regard to the Mujahadeen and that he had omitted or deleted his real story. 11 The Tribunal member asked him whether he thought the Tribunal should get a statutory declaration or statement on oath from his lawyer telling him that his lawyer had told him not to mention that he was a Mujaheddin. (His Honour thought that question appeared to have been asked rhetorically.) There was no direct answer. An exchange followed about whether the lawyer was male or female. The appellant said the lawyer involved was a male but the interpreter was female. The following then occurred: "'Tribunal: Okay, you see, so your lawyer did not tell you to say this but you decided not to say it Appellant: He, he told me that it wasn't good for me and it was up to me if I wanted to talk about it or not so I was scared and I was scared to tell the whole story and after that from the security and intelligence organisations, the Australian Intelligence organisation they came and took me to ask me questions in relationship to Mujahadeen. When the person from ministry of information in Australia came and interviewed me he told me to tell him the whole story and he convinced me that if I tell the whole story it would be to my benefit so I told him the whole story all the way through.'"(Emphasis added) The Tribunal asked for the name of that person. The applicant said he didn't know. The Tribunal member then interpolated: "'Tribunal: Well now hang on hang on hang on, you spoke to someone whose name you don't know. You told someone the whole story and you don't even know their name? Applicant: He had no role in my story. He was a member from the intelligence service that he came and talked with me and he showed me his ID card but I can't remember his name. But DIMA who is in charge of security here should have his name and you can ask them. And as well there have been other people here who have been questioned by the intelligence organisation here and I am sure they don't know his name either.' 12 The appellant identified to the Tribunal the additional matters which were not in the submission that the solicitor had sent to the Department. The first point was that he was amongst those people who were encouraging others to join the Mujahadeen. The second was that he was subjected to torture when he returned to Iran, not just because he was a member of the Mujahadeen but because he had encouraged others to join. The further additional matter was that he was sexually abused when tortured. 13 The Tribunal asked the appellant exactly what he had told his lawyer and suggested that if he had told the lawyer something which the lawyer had negligently failed to include in his statement then he should be reporting the lawyer to the Law Society or perhaps sue the lawyer. (His Honour regarded these observations as unhelpful and gratuitous.) The Tribunal said that there were all kinds of issues which would arise if the lawyer had been negligent and he needed to know exactly what the appellant told his lawyer that was not in his statement. The appellant then said: "I don't want to say that there has been any negligence towards me, negligence in responsibility towards me. What I am saying is that I said my story and he told me that if I write the case as you are saying it the way you saying it is possible that they don't like it because they do not sort of like Mujahadeen. They don't consider because Mujahadeen to them equals terrorists and that's why I was scared and I didn't tell him the whole story. I have the documents here that I could show you that my solicitor had told me that it was up to me to say these things or not and this is the exact date on it and it's a fax from my solicitor I received yesterday and the exact date and time when that intelligence officer had that interview with me is written on this. The intelligence officer wanted me to say those things - if he didn't want me to I wouldn't have mentioned them now. I said to him [the intelligence officer] that if I go to RRT and mention these sort of things, the judge, the member will think I have intentionally added this stuff for the sake of receiving a visa and they won't accept it. But he said to me that you should definitely say all these things because they are a part of your case and you should tell them that you were ashamed and this is why you didn't mention it previously. And I am sure that if you contact this intelligence officer he would give evidence in that regard, in this regard. But unfortunately I can't remember his name. But I am sure both DIMA has the information and I'm sure you could easily find his name." 14 Further on in the hearing the Tribunal said to the appellant that it did not matter whether he told the intelligence officer everything because the fact was that he did not make any of those matters public until after the protection visa decision. He told the appellant that if he had told those things to the lawyer there was "absolutely no way" that a lawyer would advise him not to put them in. The Tribunal told the appellant that he did not believe that he had said to his lawyer what he claimed to have said and that his lawyer had advised him not to say anything about them. The Tribunal said "it's just not true". In response the appellant appeared to qualify his earlier position saying that his lawyer had said he would leave it with the appellant. If he wanted to say the sort of things that he was saying or not saying them, he could think about that but it was up to him if he wanted to say them or not. 15 There was before the Tribunal a copy of a fax from Macpherson & Kelley to the appellant dated 6 March 2001, the day before the Tribunal hearing. The fax said (formal parts omitted): "'We refer to our recent telephone discussions with you in relation to the above matter and confirm that you have raised new issues concerning torture and sexual abuse. We note your comments that you had disclosed these matters to the officer conducting the security interview and that the reason you had not previously disclosed these matters was due to females being present on prior occasions. We advise that we have ascertained that your security interview was carried out on 18 January 2001, whereas your primary decision was received on 22 December 2000. We confirm our advice to you that we believe raising new matters at this stage could jeopardise your credibility with the Refugee Review Tribunal. We confirm that you were unsure whether you would raise these issues with the Refugee Review Tribunal. Should you wish to discuss this matter further, please do not hesitate to contact us.'" 16 Under the heading "Findings and Reasons", the Tribunal accepted that the appellant "had some, although not significant, involvement with the Mujahadeen as a POW until he was returned to Iran". Although accepting that the Iranian authorities did not fully trust the appellant because he had been with the Mujahadeen and that he and others like him did not receive the warm welcome and benefits the other POWs had received, the Tribunal found that the Iranian government granted the appellant and others from the Mujahadeen camp a general amnesty. The Tribunal said that it was not satisfied that at this time the authorities considered the appellant an enemy of the state. It appeared that the authorities accepted his explanation that his association with the Mujahadeen was a means for him to return to Iran. The Tribunal noted that the appellant had obtained employment with the government oil company. Although the appellant said that he should have been a permanent employee but instead worked on a daily wage and not continuously, the Tribunal noted that the appellant was able to work in government employment for a substantial period, even if he did face some discrimination, and was able to support his family. The Tribunal accepted the appellant faced some discrimination compared with other POWs who had not been associated with the Mujahadeen but concluded that overall the level of discrimination suffered by former POWs, like the appellant who came from Mujahadeen camps, "although offensive definitely does not rise to the level of persecution". The Tribunal said: "Low level discrimination which has occurred by restricting the applicant's ability to achieve promotion in his government work and restricting him to certain types of work in government employment will have an impact on him if he wishes to remain in government employment. However, even if the discrimination continues to exists it falls short of what is required to constitute persecution for the purposes of the Convention." 17 The Tribunal dealt with the question of the appellant's legal advice as follows: "The applicant claims he raised some matters about his involvement with the Mujahadeen with his lawyers but he did not then raise them with the delegate because of a fear it may harm his claim. I do not believe the applicant failed to raise issues relating to his involvement with the Mujahadeen. His application for protection is based on his association with the Mujahadeen. His claim that he failed to disclose certain facts is not plausible in the circumstances. I reject this aspect of his claim. I make this finding because I do not accept that his lawyer properly instructed would not raise this matter, and advise the applicant to present the full details. As part of his security interview the applicant may well have raised additional matters about the Mujahadeen. However this was after he received his rejection from DIMA and I do not accept that because he raised such matters at a late stage that this is an indication that he was being truthful. I do not accept that the applicant will have difficulty if he returns because he encouraged others to join the Mujahadeen. He claims his friend was arrested and may have identified the applicant and revealed the fact that the applicant did not identify Mujahadeen members to security forces when asked. The applicant claims that if he returns to Iran the government will execute him because of his activity with the Mujahadeen. He also made a new claim that his brother was arrested and his house raided and claims that he was associated with the Mujahadeen made after he left Iran. I reject these late claims as fabrications aimed to enhance his claim for refugee status. I reject these claims because they were not made until to the delegate despite ample opportunity to do so." (Emphasis added) 18 Finally the Tribunal stated that having considered the evidence as a whole it was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention and therefore he did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. 19 At the hearing below the appellant was not represented. French J was mainly concerned with the question whether the Tribunal had erred in its application of the concept of persecution. His Honour found that the Tribunal's findings on this issue were open to it and did not involve error of law. In relation to the legal advice issue argued on the present appeal his Honour said (at [27]): "The Tribunal did not accept the applicant's evidence as to his lawyer's advice. It was entitled to take that view. It was not obliged to undertake any fresh enquiry with the lawyers themselves. There is no ground of review disclosed in relation to this aspect of the applicant's case." 20 On the appeal, Ms Lisa Sarmas, counsel for the appellant, argued that the issue of the precise extent of the appellant's association with the Mujaheddin was central to his claim. His claim that he had been told not to raise this by his solicitor was plausible for a number of reasons. What he said in his initial interview (quoted at [7] above) in the passages emphasised contrasted with what he said in the solicitor's statement: ([8] above). It was likely that the solicitor would have told him not to bring out the whole of his involvement with the Mujahadeen because of the risk of exclusion from Convention protection by reason of Article 1E and 1F(a) and (b) (the serious non-political crime, war crimes and crimes against humanity exclusions). Further, the enquiry was a simple one to make and it was not one that the appellant could reasonably be expected to make himself. 21 Counsel accepted that s 427(1)(d) had been held by earlier decisions of this Court not to create an enforceable duty on the Tribunal. However, she said that in certain exceptional circumstances, such as existed in the present case, the Tribunal may be under an obligation to exercise the power, or at least an obligation to consider whether to exercise it. She referred to a statement of Allsop J in Gomez v Minister for Immigration and Multicultural Affairs [2001] FCA 935 at [26] that "… there could be circumstances thrown up by a particular claim in its context where it could be said that the circumstances were such as to oblige the Minister or the Tribunal to consider whether it ought to exercise such a power. Indeed, it is conceivable that there could be a confluence of circumstance and claim whereby there came to be an obligation to exercise the power." See also his Honour's observation in Azzi v Minister for Immigration and Multicultural Affairs [2002] FCA 24 at [113]. 22 The Court invited counsel to formulate any principled basis for identifying the exceptional circumstances in which this residual obligation under s 427(1)(d) might arise. Counsel referred to the concept of jurisdictional error of the kind dealt with by the High Court in Craig v South Australia (1995) 184 CLR 163 and Yusuf v Minister for Immigration and Multicultural Affairs (2001) 180 ALR 1 which, if made out might, establish a ground of review under s 476(1)(b) or (c) of the Act (lack of jurisdiction, decision not authorised by the Act). Applying that approach in the present case, counsel said that the Tribunal had misconceived its task. That task required it to satisfy itself that it did not have its whole finding based on the statement, prepared by the appellant's legal adviser, which may have consciously withheld information. 23 At the outset we would observe that an examination of the record casts some doubt on the factual basis of the appellant's argument. In the appellant's evidence before the Tribunal he made it clear that his lawyer, while pointing out the problems his relationship with the Mujahadeen might cause, told him that it was "up to me": see the passages quoted at [11] and [13] above. On this basis the lawyer's conduct was unremarkable and not at all improper. It is not the function of lawyers to believe or disbelieve their clients. Lawyers may know from their professional experience that some features of their client's story, for example late addition of significant elements, may lead a tribunal of fact to reject it. Other elements may, the lawyer knows, lead to adverse consequences of which the client is not aware. The lawyer can properly advise of these matters. But only the client knows the truth. If the story is true the client may nevertheless wish to persist with it. If it is not true the client may realise that, for the reasons pointed out by the lawyer, it is not likely to be accepted anyway. 24 But in any event it is clear that s 427(1)(d) does not impose any legal obligation on the Tribunal. It is not a procedure "required by the Act" within the meaning of s 476(1)(a). In Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 at [86] the Full Court said: "If, as his Honour in our view correctly held, s 427(1)(d) does not impose any duty on the Tribunal to make further enquiries, it is difficult to see how the Tribunal could have erred in law by assigning what is said to be a reason that is factually incorrect (that such enquiries would not assist) for not doing something it was not legally obliged to do." 25 By a parity of reasoning, it seems to us that if there is no legal obligation to make enquiries, there is no legal obligation to consider whether one should exercise that power. Moreover, there is either a legal obligation to exercise the power or there is not. If there is not, we do not agree that there could be some "confluence of circumstance and claim" which somehow enlivened some dormant residual obligation under s 427(1)(d). To that extent we would respectfully disagree with the proposition advanced by Allsop J in Gomez and Azzi. It is conceivable that failure by the Tribunal to make some particular enquiry might be relevant to a finding by the Court on review that there was a lack of good faith and that as a consequence the Tribunal's decision was beyond jurisdiction. But in such event the error would be lack of good faith and not the breach of any legal obligation under s 427(1)(d). No such obligation exists. 26 Moreover, for the purposes of the concept of jurisdictional error, the task of the Tribunal is not to be characterized at the level of particularity urged by counsel for the appellant. The inability to formulate principled criteria for the suggested residual application of s 427(1)(d) which do not depend on the facts of the instant case tells against the appellant's argument. 27 The Tribunal's task was to reach a stage of satisfaction or non-satisfaction as to whether the appellant satisfied the criterion of s 36(2), that is to say whether the appellant was a refugee within the meaning the meaning of the Refugees Convention. As Gleeson CJ said in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2002] HCA 32 at [26]: "The distinction between judicial review of administrative decision-making upon the ground that there has been an error of law, including a failure to comply with the requirements of procedural fairness, and comprehensive review of the merits of that administrative decision, would be obliterated if every step in a process of reasoning towards a decision which was subject to judicial correction. The duty to base a decision on evidence, which is part of a legal requirement of procedural fairness, does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts." 28 Although that observation was made in a case which concerned the "no evidence" ground, the reasoning is equally applicable here. The Tribunal considered the whole of the material, including particularly the appellant's life in Iran in the ten years since his return from Iraq. It was not suggested, nor could it be, that the Tribunal's decision was "based on" any "particular fact" as to the extent of the appellant's involvement with the Mujahadeen within the meaning of s 476(1)(g) and (4)(b). In the context of an argument as to jurisdictional error, the task of the Tribunal, as mandated by s 36(2) and s 65(1)(a)(ii), was to reach a stage of satisfaction or otherwise as to whether the appellant had a well-founded fear of persecution on the ground asserted. Enquiry as to whether he had any, and if so what, association with the Mujahadeen in Iraq was a sub-task. Enquiry as to whether the reason for late disclosure of a particular aspect of that association was due to legal advice was a sub-sub-task. 29 Further, the Tribunal made a finding of fact (see the passage quoted at [17] above) that even if the appellant had encouraged other POWs to join the Mujahadeen he would not suffer persecution (in the Convention sense) if he were to return to Iran. Given the time that has passed, and the lack of any suggestion that the full extent of his activities in Iraq might somehow now be brought to the attention of the Iranian authorities, this was a finding plainly open to the Tribunal. 30 The appeal must be dismissed with costs. We gratefully acknowledge the capable assistance of Ms Sarmas who appeared under the Court's pro bono scheme. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Heerey, R D Nicholson and Mansfield