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[2003] FCAFC 6
Federal Court of Australia (Full Court)
2003-02-12
French J, Downes JJ
Original judgment source is linked above.
THE COURT 1 This appeal concerns two Iranians, father and son. They arrived in Australia on 2 November 2000 without any prior permission. The son was aged 19. On 22 February 2001 they applied for protection visas. The applications were refused by a delegate of the Minister on 20 April 2001. Applications were made to the Refugee Review Tribunal for review of the decisions. The Tribunal affirmed the decisions on 26 June 2001. On 10 July 2001 both father and son applied to this Court for orders for judicial review of the decisions of the Tribunal and orders remitting their applications to the Tribunal for further determination. The applications were heard by French J. He dismissed the applications on 2 May 2002. An appeal to the Full Court was lodged on 7 May 2002. 2 The notice of appeal was prepared by the appellants. Until shortly before the scheduled hearing of the appeal on 14 November 2002 the appellants were unrepresented. When the matter was called on for hearing Mr McIntyre SC announced that he appeared for the appellants. He sought time to amend the notice of appeal and to prepare argument. This course was not opposed by Mr Macliver who appeared for the respondents. The matter was accordingly adjourned for the preparation of an amended notice of appeal and written submissions on the basis that the appeal would be determined by reference to the written submissions unless the court wished to hear oral argument or unless one or both of the parties applied for a further oral hearing. The appellants have now filed a draft amended notice of appeal. All parties have filed their written submissions. No application for a further oral hearing has been made. The court does not feel any need to hear further oral argument. 3 The father was first interviewed by an officer of the Department of Immigration and Multicultural Affairs on 13 November 2000, less than two weeks after the appellants arrived in Australia. When asked why he left Iran he replied that his son had wanted to leave Iran. He said that he had wanted a better future for his three children and that he thought he should leave with his son 'for his sake'. When asked if there was any other reason he responded: 'No, we didn't have any problems'. When asked whether he had any reasons for not wishing to return he said he had destroyed his passport and would be questioned by the authorities. He said he had borrowed money for the trip which he would need to repay and that he wanted to work in Australia to save up for this. He was asked if there were any other reasons. He responded: 'No, no other reasons'. 4 The son was interviewed on the same day. He said that he had left Iran for his education. He said there were no jobs for graduates. He referred to 'economical factors.' He then referred to 'our politics'. He expanded by reference to young persons not having peace. He referred to national service and government policies relating to universities. Asked why he did not want to return to Iran he said that it had cost a lot of money to come to Australia, he had no place now at university, he no longer had his passport and 'from a security point of view, if I return I will be put in prison. Especially for me because my father is older and I am younger'. 5 Both applicants answered 'no' or 'none' to each of the following questions except that the son referred to 'a distant relative' in the answer to question 4: '1. Please give details of your association or involvement in activities against any government or political group 2. Please give details of your family's association or involvement in activities against any government or political group 3. Please give details of your association or involvement with any political group or organisation 4. Please give details of your family's association or involvement with any political group or organisation' 6 When the appellants applied for protection visas just over three months later they gave accounts which were significantly different to the accounts given at the first interview. The father claimed he had been involved with the Mujahedin Khalgh Organisation ('MKO') in Iran with his son and feared that on return to Iran he would be interrogated, tortured and sentenced to death or lengthy imprisonment. He gave a detailed account of his alleged MKO activities. He also said that he had converted to Christianity. The son made similar claims. He also claimed to have converted to Christianity. 7 The member of the Refugee Review Tribunal hearing the applications listened to a tape record of the original interviews. The Tribunal heard evidence from, and asked questions of, the father on two occasions and the son on one occasion. 8 The Tribunal took considerable pains to grapple with the question of where the truth lay between the remarkably different accounts given by the appellants. The appellants were expressly given the opportunity to address this issue. They sought to explain the differences in the two accounts. The Tribunal assessed the explanations. In addressing the issue the Tribunal took note that: 'The UNHCR Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, January 1992, para. 198) reminds decision makers that a person who, because of his experiences, was in fear of the authorities in his own country may feel apprehensive vis-ŕ-vis any authority. He may therefore be afraid to speak freely and give a full and accurate account of his case.'
9 The Tribunal took these matters and similar considerations into account in assessing the appellant's clams. The Tribunal concluded: 'For the above reasons I consider the account of their reasons for leaving Iran, given during the interview of 13 November 2000, is truthful. I do not accept that either applicant left Iran because he had been distributing MKO materials, nor that either applicant was suspected of such activities at the time he left. I find that they left legally and openly, using their own passports. I find that [the father] left Iran because he wanted a better future for his children, and to accompany [the son]. I find that [the son] left Iran because he wanted to improve his education and employment opportunities, and because he resented having to pay for his university education.'
10 The jurisdiction of this Court to review the decisions of the Tribunal in this appeal is found in Part 8 of the Migration Act 1958 (Cth) ('the Act') as it was prior to 27 September 2001. Judicial review under those provisions is narrower than the grounds available at common law or under the Administrative Decisions (Judicial Review) Act 1977 (Cth). There were seven grounds set forth in subs 476(1) of the Act: '476 Application for review (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(b) that the person who purported to make the decision did not have jurisdiction to make the decision;
(c ) that the decision was not authorised by this Act or the regulations;
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(f) that the decision was induced or affected by fraud or by actual bias;
(g) that there was no evidence or other material to justify the making of the decision.'
11 The amended Notice of Appeal contains two grounds. The grounds rely upon par 476(1)(b) and par 476(1)(e) of the Act and assert jurisdictional error and error of law. The two grounds, as described in the appellants' written submissions, are as follows: 1. 'The Tribunal misdirected itself at law as to the proper test to apply to the assessment of the Appellants' applications for protection visas, when arriving at a state of satisfaction that an applicant has a well founded fear of persecution (a jurisdictional error which is reviewable pursuant to section 476(b) of the Migration Act 1958), by failing to take into account the possibility that alleged past events occurred, even though it found that those event [sic] probably did not occur, foreclosing reasonable speculation about the chances of a hypothetical future event occurring: MMIA v Rajalingam [1999] FCA 719 at [60], in particular: (i) The Tribunal failed to speculate as to the possibility that the Applicants received from abroad and distributed MKO pamphlets while in Iran: AB p 175. (ii) The Tribunal failed to speculate as to the possibility that the authorities became aware of those activities, resulting, in particular, in the Applicants destroyed [sic] MKO pamphlets and other materials in their possession upon learning that the Ettela' had raided their house: AB pp 171-2, 176-7 and 183'. 2. 'The Tribunal misdirected itself at law as to the proper test to apply to the assessment of the Appellants' credibility by making an assessment that the Appellants were not credible, based upon speculation, without any evidentiary base, as to alternative hypotheses in relation to past events of which the Appellants provided evidence as follows: (i) The Tribunal speculated that [the father] obtained the information which suggested some familiarity with the MKO from Iranians with whom he had been in custody since at least February 2001 rarther [sic] than from materials of which he was a recipient and distributor in Iran: AB p 180. (ii) The Tribunal speculated that the circumstances of the Applicants circumstances [sic] were not such that they would be too frightened even to hint, when asked directly, that they had fled Iran in order to seek protection from harm; AB pp 181-182. See evidence (in the form of argument) to the contrary in the letter from Mr S Davityan, summarised by the Tribunal at paragraph a): AB pp 173-4. (iii) The Tribunal speculated as to why other Iranian detainees would profer [sic] advice that they should not say anything "political" during their first interview: AB p 182. (iv) The Tribunal speculated that [the father] would have sought an assurance that his claims would be dealt with in confidence if he had been concerned about the security of the information: AB p 182. (v) The Tribunal speculated that the Appellants accounts of events on the day they destroyed MKO materials were internally consistent because they had discussions before the hearing, rather than because they had genuine memories of such a day: AB p 182.' 12 As to the first ground, we note that Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 and the High Court cases there discussed (Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Abebe v The Commonwealth (1999)197 CLR 510) are concerned with situations in which the decision-maker is uncertain as to past events which are relevant to whether a visa applicant has a well-founded fear of a possible future event, namely the applicant's persecution. In such circumstances decision‑makers should take into account the possibility that the past events occurred in assessing whether there is a well-founded fear. However, no occasion for this approach arises where there is no uncertainty in the mind of the decision-maker. Nor should uncertainty be attributed to a decision-maker where no lack of certainty appears from the reasons for decision. The cases where relevant uncertainty may be found are likely to be cases where the facts are inherently difficult to ascertain such as whether persons with a known and certain background have been persecuted on return to their country of origin. Wu Shan Liang and Guo are examples. The applicant in Abebe failed unanimously in the High Court where her principal claim was that she had been imprisoned and assaulted in Ethiopia by government officials for political and racial reasons. The Tribunal having rejected the applicant's claimed arrest, 'her further claims of detention and rape became logically irrelevant' (at 545, at par [85]). Nor, having found that the applicant was not credible, was the Tribunal required 'to determine whether there was a real chance that she had been arrested as she claimed' (at 545, at par [85]). 13 In the present case the Tribunal exhibited no lack of certainty in its findings. It rejected the appellants' positive case that they left Iran because of concerns as to what would happen to them by reason of involvement with the MKO. The Tribunal accepted that they left Iran to find a better future. The Tribunal was plainly entitled to make this positive finding because it was based on the appellants' own claims as originally made. 14 In the light of the findings it would have been a waste of time and quite unreal for the Tribunal to have considered the possibility that the appellants might have had a well-founded fear of persecution on return to Iran. The factual basis for such a fear had been rejected. It might have been different if the Tribunal had upheld the appellants' claims relating to their alleged MKO activity but was uncertain as to whether evidence of past events in Iran supported the claim that they might be persecuted on return to Iran. However, on the facts found by the Tribunal, this question simply did not arise. 15 The first ground must fail. 16 The second ground attacks the Tribunal's findings on credibility which led to its above findings of fact. It is said that the findings were based on speculation, without any evidentiary base. It is submitted that the Tribunal postulated factual circumstances alternative to the appellants' claims although there was no basis for this. We do not agree with this assessment of the reasoning of the Tribunal. 17 First, the Tribunal's decision, as the passage set out above shows, was based on a preference for the explanation originally given by the appellants over the claims they ultimately made. There was positive evidence on which the Tribunal based its conclusions, namely the first explanation given by the appellants. Secondly, although the Tribunal speculated as to what might have occurred this was speculation of the type that is commonplace in reasons for decision. Were it the sole basis for a positive finding of fact for which there was no other evidence the finding might not be sustainable. However, that is not this case. 18 The appellants rely upon the following passage from the judgment of Gummow and Hayne JJ in Abebe (at 577-578, at par [191]): 'Secondly, the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising. It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.' We note that the next sentence in the judgment is: 'But those difficulties are to be confronted by the Tribunal in the execution of its tasks, not by a court that is asked to review the way in which the Tribunal reached its decision.' 19 The second ground must fail. 20 We grant leave to the appellants to amend the notice of appeal in accordance with the draft amended notice of appeal. The appeal must be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Wilcox, RD Nicholson and Downes.
Associate: Dated: 12 February 2003 Counsel for the Appellant: Mr G M G McIntyre SC Counsel for the Respondent: Mr P R Macliver Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 14 November 2002 Date of Judgment: 12 February 2003
WAGR
Minister For Immigration & Multicultural & Indigenous Affairs