WAGP v Minister for Immigration & Multicultural & Indigenous Affairs

first tribunal 4 On 27 June 2001 a delegate of the first respondent refused the applicant's application for a protection visa. The applicant sought review of that decision by the Refugee Review Tribunal ('the Tribunal'). (The second respondent has stated through the first respondent that it will abide by the decision of the Court). The applicant gave evidence to the Tribunal at a hearing held on 10 August 2001 at which he maintained his claim that he was an Iraqi who had been living in Iran and on that basis he claimed to have a well-founded fear of persecution both in relation to Iran and Iraq. The Tribunal told the applicant it had difficulty believing that he was from Iraq and found him to be a national of Iran. The applicant also claimed that he did not sign a 'nationality page' and that the interviewer had written on it that he did not want to sign it. The Tribunal noted that the document was not on the Department's file and the Tribunal had been unable to obtain it from the Department. 5 At the conclusion of the Tribunal hearing on 10 August 2001 the Tribunal member gave the applicant a letter advising that the Tribunal had information that would, subject to any comment he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. 6 On 14 August 2001 the applicant's adviser forwarded submissions and photocopies of two documents to the Tribunal. The accompanying translations of the two documents indicated that one was a 'green card' issued to the applicant on 20 August 2000 and the other was a 'green card' issued to the applicant's father without an issue date. The applicant's 'green card' was stated to be valid for one year from date of issue and described both the applicant's and his father's citizenship as 'Iraqi'. 7 On 22 August 2001 the Tribunal affirmed the delegate's decision to not grant to the applicant a protection visa. In its Reasons For Decision, the Tribunal concluded that it was unable to accept that the photocopy of the green card purporting to be the applicant's was a copy of a genuine card issued to him by the Iranian authorities. The Tribunal set out five reasons for reaching that conclusion. The Tribunal then dealt with other matters raised by the applicant in support of his claim to be a citizen of Iraq, concluding that the applicant was a national of Iran. 8 The Tribunal then considered whether the applicant had a well-founded fear of persecution in relation to Iran. It concluded it was satisfied that the applicant did not have a well-founded fear of Convention-related persecution in Iran and that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. The applicant therefore did not satisfy the criterion set out in s 36(2) of the Migration Act 1958 (Cth) ('the Act').

appeals 9 By an application lodged with the Federal Court on 11 September 2001, the applicant sought review of the Tribunal's decision. Nicholson J considered whether the Tribunal was obliged to comply with s 424A(1) of the Act in respect of any of the 'five matters' which had lead to the Tribunal's conclusion not to accept the photocopy of the green card as genuine. His Honour concluded that the Tribunal was not so obliged and that even if it could be argued that s 424A(1) does not preclude the rules of natural justice, such a ground of review was precluded by the former s 476(2)(a) of the Act: Navaser v Minister for Immigration and Multicultural Affairs [2002] FCA 505 at [20]-[22]. 10 The applicant appealed the decision. The appeal was dismissed by the Full Court of the Federal Court on 13 September 2002. The Full Court concluded that s 424A(1) of the Act did not require the Tribunal to put any further matters to the applicant concerning its reasons for concluding that the photocopy of the document provided to it was not a genuine green card issued by the Iranian authorities to the applicant: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 124 FCR 276 at [18]-[36].

application for order nisi 11 On 20 September 2002 the applicant applied to the High Court for special leave to appeal the Full Court's decision. That application was discontinued on 25 May 2004 when an application for an order nisi was filed in the High Court. The Draft Order Nisi sought a writ of mandamus and/or an injunction in respect of the Tribunal's decision upon the ground of an alleged breach of procedural fairness by the Tribunal because it had not given the applicant an opportunity to be heard on any of the matters which led to it not accepting the two 'green cards' submitted as genuine. 12 The High Court subsequently remitted the application to the Federal Court. On 26 November 2001 Lee J made orders by consent quashing the Tribunal's decision made on 22 August 2001 and requiring the Tribunal to reconsider the application for review of the delegate's decision not to grant a protection visa. The declaration form which the applicant claimed he refused to sign at his initial interview was not on the Department's file when it was again forwarded to the Tribunal.

second tribunal 13 In a letter dated 14 January 2005 the Tribunal advised the applicant that it had information that would, subject to any comments he might make, be the reason or part of the reason for deciding that he was not entitled to a protection visa. The letter set out the information and why it was relevant and invited his comments to be given at the Tribunal hearing on 18 January 2005. On 17 January 2005 the applicant's adviser provided the Tribunal with a statutory declaration by the applicant which was said to address most but not all of the information in the Tribunal's letter, as it was completed before the Tribunal's letter was received. Annexed to the statutory declaration was a copy of a recent certified translation of the applicant's 'green card' and a copy of a letter said to have been from the Khuzestan Governor's Office and a copy of its certified translation. 14 On 18 January 2005 the applicant gave additional oral evidence to a differently constituted Tribunal ('the second Tribunal'). On 27 January 2005 the applicant's adviser provided the second Tribunal with lengthy written submissions and further translations of the applicant's and his father's 'green cards' and a Certificate from the Office of the Governor of Ahvaz. 15 On 1 February 2005 the second Tribunal made a decision affirming the delegate's decision to refuse to grant a protection visa to the applicant.

application for review 16 On 8 March 2005 the applicant applied to the Federal Court for review of the second Tribunal's decision. The ground of the applicant's application for review is: 'The applicant appeals against the whole of the decision of the Hon Kim Rosser on 01.02.05 regarding my application for a protection visa.' 17 On 6 May 2005 Nicholson J ordered that the applicant file and serve an amended application by 17 June 2005 giving particulars of any grounds founding relief under the Judiciary Act 1903 (Cth) or a statement setting out why he considers the decision of the second Tribunal should be overturned. The applicant has not served any amended application or any such statement. 18 At the hearing of the application the Tribunal was joined as a second respondent in accordance with the reasoning of the High Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [43] per McHugh J, at [90]-[91] per Gummow J, at [153] per Kirby J and at [180] per Hayne J.

reasons of second tribunal 19 In its Reasons for Decision the second Tribunal noted that in his most recent statutory declaration the applicant had stated that he was advised by Iranians with whom he travelled to say he was Iranian. The second Tribunal also stated that in response to the Tribunal's question as to why he had not previously advanced this as an explanation for what he had said at his initial interview, the applicant stated: '… that in 2000 when he was interviewed, he was scared. At the end of the interview he said that he was an Iraqi. The applicant claimed that the interpreter was angry with him and asked why he had not said that he was an Iranian. I put to the applicant that he had never previously stated that he said that he was an Iraqi at the arrival interview. He claimed that he wrote on the paper that he was Iraqi. I asked the applicant if there was any reason why he had never said that at the arrival interview he wrote that he was Iraqi. The applicant claimed that he said this at the delegate's interview and during the previous Tribunal hearing.' 20 The second Tribunal also noted that the applicant had repeated his claim that at his initial interview he had refused to sign a document stating that he was an Iranian national and that he later signed the same document stating that he was an Iraqi national. The second Tribunal referred to an Effective Protection Statutory Declaration dated 21 June 2001 in which the applicant asserted he is a national of Iraq and stated that there was no evidence on the Department's file that the applicant had refused to sign this or any other form. 21 The second Tribunal was nevertheless prepared to accept that the applicant had refused to sign the Effective Protection Statutory Declaration around the time of his arrival interview. However, the second Tribunal did not accept that the applicant had written that he was an Iraqi on this form. Nor did the second Tribunal accept that the applicant's refusal to sign a form stating that he was an Iranian national constituted evidence that he is not an Iranian national. 22 Of critical importance to the second Tribunal's review of the delegate's decision was the issue of the applicant's nationality. The second Tribunal concluded that the applicant is not an Iraqi, but is an Iranian national. 23 In relation to the declaration form which the applicant refused to sign at his initial interview and his new claim to the second Tribunal that at the end of his initial interview he had claimed to be an Iraqi national and that he had written this on the form, the second Tribunal stated: 'As noted, a central issue in this case is the applicant's nationality. When the applicant was interviewed upon arrival in Australia, he stated that he was born in Iran and that he was of Iranian ethnicity. The arrival interview also records him as having stated that he was of Iranian nationality. The applicant has since maintained that he did not state that he was an Iranian national but that he said he was from Iran. At the hearing before the Tribunal as previously constituted, the applicant agreed that he said that he was born in Iran. The applicant has also reiterated that he refused to sign a document stating that he was an Iranian national and that he later signed the same document stating that he was an Iraqi national. At the hearing before me the applicant's evidence appeared to shift. It appeared that he was claiming that he had claimed to be an Iraqi national at the end of the arrival interview and that he had written this on the form which he refused to sign. Having examined the Departmental file, I conclude that the document referred to by the applicant is the "Effective Protection Statutory Declaration", which is at folio 65 of the Departmental file. This document is dated 21 June 2001. In it the applicant asserts that he is a national of Iraq. There is no evidence on the departmental file that the applicant had previously refused to sign this or any other form. However, I am prepared to accept that the applicant refused to sign a Effective Protection Statutory Declaration around the time of his arrival interview. That said, I do not accept that the applicant wrote that he was an Iraqi on this form. In my view, if the applicant had done so, he would have told the Tribunal as previously constituted. Furthermore, I do not accept that the applicant's refusal to sign a form stating that he was an Iranian national constitutes evidence that he is not an Iranian national. The applicant may well have refused to sign a form stating that he was an Iranian national because he thought that signing the form would facilitate his removal to Iran.' (emphasis added) 24 The second Tribunal noted that the applicant had advanced a number of reasons for what he had said during his initial interview and that at the hearing before the second Tribunal he had advanced, for the first time, a new reason for having said that he was from Iran, namely that he had been told what to say by some Iranians who had been travelling on the same boat with him. The second Tribunal addressed the other reasons given by the applicant and referred to the fact that at his initial interview the applicant had provided detailed information in relation to such matters as his employment history and military service and that if he had been tired, stressed and afraid as he had claimed, it was inherently unlikely that he would have the presence of mind to be able to provide this type of detailed biographical data. 25 The second Tribunal also did not consider that the applicant's most recent explanation for what he said during his initial interview, that he was told what to say by other Iranians, was any more persuasive than the explanations which he had previously given. The Tribunal concluded that the applicant had no satisfactory explanation for what he had said during his initial interview and that he had now advanced a completely new explanation demonstrated 'his propensity to say anything he thinks will help his case, with little regard for the truth'. 26 The second Tribunal then considered the documents which the applicant had provided in support of his claims, namely the copies of what were claimed to be his and his father's 'green cards' issued by the Iranian authorities and a letter from the Office of the Governor of Ahvaz to his father dated 3 November 2001. For the reasons which it set out, the second Tribunal concluded that the 'green card' purporting to be that of the applicant was not genuine and it placed no weight on any of the documents provided by the applicant as evidence that he is an Iraqi. 27 The Tribunal also provided other examples of where the applicant had not been truthful in his evidence and then referred to a problem with the applicant's evidence in relation to his father having told him that Shi'a Muslims constituted a minority group in Iraq. The second Tribunal also noted that the applicant had given his evidence at the hearing through an Arabic interpreter, although in the past he had used a Persian interpreter. The Tribunal concluded that the fact that the applicant could speak Arabic did not constitute evidence that he is of Iraqi nationality. 28 The second Tribunal concluded that: 'Given the applicant's overall lack of credibility, his failure to provide a cogent explanation for his claim to be an Iranian at the arrival interview and his unawareness that Iraqi Shi'as form the majority of the population in Iraq, I conclude that the applicant is not Iraqi, but an Iranian national. I am of the view that the applicant, having been initially excluded from making a protection visa application, claimed to be Iraqi in an attempt to create for himself the profile of a refugee.' 29 The second Tribunal went on to consider whether, as an Iranian national the applicant had a well-founded fear of persecution for a Convention reason in relation to Iran. The Tribunal concluded that it could not be satisfied that the 'bag incident' which the applicant had referred to at his initial interview had happened and therefore it could not be satisfied that it gave rise to a well-founded fear of persecution for a Convention reason. As the applicant had not claimed to fear persecution as an Iranian national on any other basis and no other basis was raised on the evidence, it concluded that it could not be satisfied that the applicant has as a well-founded fear of persecution for a Convention reason.

evidence 30 On the hearing of the current application the first respondent tendered an affidavit of one of its solicitors to which were exhibited certain documents. The hearing was adjourned to enable the affidavit to be translated by the interpreter to the applicant. 31 In the affidavit the solicitor recounts that as a result of the applicant's claim that he had refused to sign a document about his nationality a search had resulted in a copy of the statutory declaration form in the Persian language relating to the applicant being located in a file kept by the Department in its Unauthorised Arrival Section in Canberra. A copy of that document was annexed to the affidavit. It clearly shows on its face that the words 'Refused to Sign' and 'Reason over page' are handwritten. The affidavit also states that the Unauthorised Arrival Section does not contain a copy of the reverse side and that the original form transmitted to that section no longer exists. 32 The affidavit states that after the first Tribunal's decision was set aside by the consent orders on 26 November 2004, the solicitor had advised the Department to ensure that a copy of the statutory declaration form was placed on the applicant's file before it was sent to the second Tribunal. His evidence was that nevertheless it appears this was not done. 33 The affidavit further annexed a copy of a letter to the applicant from the Department's Removals Policy and Operations Section. On the basis that the applicant did not have outstanding applications in relation to his application for a protection visa before the Department or the courts he was required, in accordance with s 198 of the Act, to be removed from Australia as soon as practicable. It was stated that his country of nationality was Iraq and the letter directed to steps that were required to be taken to facilitate his return to that country.

applicant's submissions 34 In oral submissions on the hearing of the application, the applicant claimed that the second Tribunal decision was vitiated by error of law as a consequence, firstly, of certain documents not being before it and, secondly, by the nature of the hearing. 35 When pressed, the applicant identified the documents as threefold. The first was the document firstly exhibited to the affidavit of the solicitor for the Department which had not appeared in the file of the second Tribunal. The second was the letter from the Office of the Governor of Ahvaz. The third was a document received by the applicant after the war in Iraq. This was subsequently identified as the letter from the Department's Removals Policy and Operations Section. 36 In relation to the nature of the hearing, the applicant said that he had not been allowed to talk at the hearing; the Tribunal member had not listened to him; the interpreter had not been allowed to talk; a solicitor had been refused interpretation; and the Tribunal member had refused to listen to tapes of his initial interview.

whether there was jurisdictional error by reason of the declaration form not being provided to the second tribunal 37 The effect of the High Court's decision in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 is that s 474 of the Act (the privative clause provision), does not prevent the judicial review of decisions that involve jurisdictional error. Hence the focus of any application for review of a decision of the Tribunal is whether the Tribunal's decision involved jurisdictional error. 38 In some circumstances, the failure to provide the Tribunal with a document that was before the primary decision-maker may constitute jurisdictional error by reason of a breach of procedural fairness: see Muin v Refugee Review Tribunal (2002) 190 ALR 601. 39 In Muin the parties agreed that the plaintiff believed that certain documents had been sent to and looked at by the Tribunal when making its decision on the plaintiff's protection visa application. It was also not in dispute that the Tribunal had in fact not considered these documents and that, if the plaintiff had been aware of that, he would have taken steps to put additional documents before the Tribunal. It was this combination of circumstances which led a majority of the High Court to hold that there had been a breach of procedural fairness. 40 In the present case, the applicant was aware that the declaration form had not been before the first Tribunal. There is no evidence that the applicant was aware that a copy of the declaration form which he refused to sign at his initial interview had subsequently been located and, consequently, he cannot have been under any belief that it would be provided to the second Tribunal. Accordingly there was no breach of procedural fairness of the kind which the High Court found in Muin. 41 Nor did the absence of the declaration form before the second Tribunal otherwise amount to a breach of procedural fairness. While it is conceivable that the failure by the Tribunal to have regard to a particular document other than in Muin type circumstances may amount to a breach of procedural fairness, the second Tribunal was prepared to accept the applicant's claim that he had refused to sign the declaration form at his initial interview. The second Tribunal did not accept the applicant's claim that at the end of the initial interview he had written on the declaration form that he was an Iraqi national, however this conclusion would only have been strengthened if the declaration form had been before it. The translation of the available portion of the declaration form shows that it does not contain any writing by the applicant that he is an Iraqi.

whether absence of declaration form before the second tribunal occasioned jurisdictional error by reason of the ignoring of relevant material 42 If the Tribunal ignores relevant material, that may constitute jurisdictional error: see Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]. However, as Yusuf makes clear, the ignoring of relevant material will only amount to jurisdictional error if the Tribunal's exercise or purported exercise of power 'is thereby affected': at [82] and [84]. 43 The second Tribunal cannot be said to have ignored the declaration form, even though it did not have a copy of it. The second Tribunal gave consideration to the applicant's claims that he had refused to sign the declaration form at his initial interview and that at the end of that interview he had written on the form that he was an Iraqi. 44 Even if it could be said that the second Tribunal had ignored the relevant material constituted by the declaration form, the second Tribunal's exercise of power has not thereby been affected. The absence of the declaration form had no affect on the second Tribunal's decision affirming the decision refusing to grant a protection visa to the applicant. This is because the second Tribunal accepted the applicant's claim that he had refused to sign the declaration form at his initial interview. Additionally, as has been said, if the copy of the declaration form had been before the second Tribunal, it could only have strengthened its conclusion that the applicant had not written on the form that he was an Iraqi.

whether jurisdictional error arising from the letter from the office of the governor of ahvaz 45 The applicant first provided copies of 'green cards' for himself and his father and their translations to the Tribunal following the first Tribunal hearing on 10 August 2001. The second Tribunal had doubts as to the genuineness of these photocopied documents and raised its concerns in its letter to the applicant dated 14 January 2005. 46 The applicant's adviser forwarded to the Tribunal a statutory declaration by the applicant which was said to address 'most but not all the information provided in the letter' of the Tribunal dated 14 January 2005. Annexed to the statutory declaration was a further translation of the applicant's 'green card', together with a copy of a letter which he claimed was from the Khuzestan Governor's Office dated 3 November 2001 and a copy of a certified translation of that letter. This letter and its translation had not been before the first Tribunal. 47 Given that the second Tribunal had doubts as to the genuineness of the two 'green cards' purportedly issued by the Iranian authorities, it was likely that the second Tribunal would also have had doubts as to the genuineness of the letter from the Office of the Governor of Ahvaz. At the second Tribunal hearing, the second Tribunal specifically put to the applicant that it had difficulty accepting that the documents he had provided were genuine. The applicant and his adviser clearly understood that the Tribunal's concerns in relation to the applicant's documents included concerns as to the genuineness of the copy letter from the Office of the Governor of Ahvaz, as the adviser's post hearing submissions included a specific submission that 'the letter from the Ministry of Interior should be accepted as genuine'. 48 It may be accepted that where an applicant provides documents to the Tribunal in support of his or her claims, a failure to advise the applicant that the Tribunal does not accept the documents as genuine may in some circumstances amount to a breach of procedural fairness: see WACO v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 76 ALD 597. 49 The circumstances in the present case are quite different from those in WACO. The second Tribunal expressly advised the applicant of its concerns as to the genuineness of the two photocopied 'green cards' in its letter of 14 January 2005 and this should have alerted the applicant that the Tribunal might also have doubts as to the genuineness of the letter from the Office of the Governor of Ahvaz which he had forwarded to the second Tribunal. In all of these circumstances, there was no breach of procedural fairness by the second Tribunal in deciding that it would place no weight on the 'green cards' and the letter from the Office of the Governor of Ahvaz.

nature of hearing 50 In relation to the applicant's first submissions concerning inattentiveness and inattention at the second Tribunal hearing, no submission was made subsequently by his adviser that the hearing had not been a fair one. This has all the hallmarks of a contention of recent invention that is unsupported by evidence. 51 In relation to the alleged failure of the second Tribunal to listen to tapes, it is apparent from the reasons of the Tribunal that the tape of the interview with the delegate had been listened to. Additionally in connection with the assertion by the applicant that two Iranians had told him to say he was Iranian, the second Tribunal had listened to the tape recording of the first Tribunal hearing. It is also apparent from the Court Book that on 20 January 2005 the applicant's adviser requested a copy of the tape of the hearing and received the same. Following the hearing on 18 January 2005 the adviser provided extensive written submissions to the second Tribunal that did not refer to any other tapes requested. 52 Although it would appear that the second Tribunal did not listen to the tapes of the applicant's initial interview, it is not apparent why that would have made any difference. The applicant asserted that the innocence and sincerity of that interview would have won the day for him. When pressed to say whether there were any statements of fact in the interview which would not otherwise have come to the attention of the second Tribunal, he said that there was no such issue of fact to mention. It is simply not apparent how the second Tribunal listening to the tape of the initial interview would have made any difference in the relevant sense.

conclusion 53 It follows that the second Tribunal's Reasons for Decision do not disclose any jurisdictional error. The application should therefore be dismissed with costs. I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

Solicitor for the Respondents: Australian Government Solicitor