P v Minister for Immigration and Multicultural Affairs [2001] FCA 989 (31 July 2001)

Last Updated: 31 July 2001

FEDERAL COURT OF AUSTRALIA

P v Minister for Immigration and Multicultural Affairs [2001] FCA 989

MIGRATION - Refugee claim - Refusal of Refugee Review Tribunal to grant protection visa - Tribunal rejected authenticity of an Iranian document described, in an "unofficial translation", as a "warrant" - Reason for rejection was that a warrant, unlike a summons, would not be given out by Iranian authorities - Tribunal member used perceived inauthenticity of the document as a reason for rejecting applicant's credibility - Tribunal failed to consider possibility that translator mistranslated the title of the document - Tribunal failed to direct any investigation of the authenticity of the document, despite being aware of offer by the Australian Embassy in Teheran to check authenticity of Iranian legal documents - Whether these failures provided a ground of review within jurisdiction of the Federal Court - Reference to error of law, reliance on irrelevant material and no evidence grounds of review.

Migration Act 1958 ss 427(1)(d), 476.

P v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 35 of 2001

WILCOX J

31 JULY 2001

SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 35 of 2001

BETWEEN:	P APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	31 JULY 2001
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1. The Court record be amended to identify the applicant, in all published documents, only as "P".

2. The application be dismissed.

3. The applicant pay the costs of the respondent.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 35 of 2001

BETWEEN:	P APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	31 JULY 2001
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

WILCOX J:

1 This is an application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the respondent, Minister for Immigration and Multicultural Affairs, to refuse to grant a protection visa to the applicant.

2 At the hearing of the application for judicial review, the applicant was represented by Ms L B Price of counsel, appearing on a pro bono basis. I record the appreciation of the Court for Ms Price's willingness to undertake that task.

The facts

3 The applicant is a citizen of Iran. He arrived in Australia on 29 June 2000 and subsequently applied for a protection visa. He did so on the basis that he was a "refugee" within the meaning of the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol on the Status of Refugees.

4 The applicant told the Tribunal that, in Iran, he had been employed by a certain publicly-owned company. Shortly after taking up a new, senior position, he discovered documentary discrepancies that led him to conclude other officers had engaged in fraudulent activities. He investigated the position and prepared a report which he submitted to the company manager. He received no response from the manager. However, shortly afterwards, the head of security in the company accused him of insulting the Islamic Supreme Leader and promoting anti-government ideas. He denied these allegations. A few days later, he was questioned about his activities, his friends and his attendances at Friday prayers. On the following day, he was stopped as he left work and taken by car to a secret Ministry of Information prison where he was held for three days, during which he was bashed and caned on the soles of his feet.

5 After three days, the applicant said, his brother inquired for him at his workplace. The head of security brought the brother to the prison and showed the applicant a petition from company workers alleging the applicant had criticised government policies and a particular official. The head of security threatened to send this petition to the Information Ministry, unless the applicant withdrew his letter to the company manager and handed over the documents that supported his claim of fraud. The applicant said he would do this, but he had sent the documents to a friend in Teheran. The head of security allowed the applicant to go to Teheran to get the documents. Instead, he left Iran and made his way to Australia.

6 The applicant told the Tribunal that, since his departure from Iran, a "warrant" had been sent to his home requiring his attendance at court. This document had been sent on to him in Australia by his brother. The applicant produced a document, of which there is an "unofficial translation" in the Tribunal's papers. The translation is headed "Warrant". It identifies the applicant and states his address in Iran. It also identifies a particular police station as "Place of Issue". The document indicates a "Place of Hearing", "Date of Hearing" and "Time of Hearing". Against the item "Reasons for Warrant" are the words "Security unit of [omitted] company has lodged a complaint against you. You must be present at the given time and date". The nature of the complaint is not specified.

7 In her reasons for decision, the Tribunal member referred to "country information" concerning several matters. One of these matters was summonses and warrants issued in Iran. The member quoted from a Department of Foreign Affairs and Trade communication of 4 July 1997, a document apparently emanating from the Australian Embassy in Teheran. The quoted excerpt read:

"In relation to the procedure for issuing arrest warrants in Iran, warrants are issued by the judicial authorities directly to the police for the arrest of the defendant. The defendant is never provided with a copy of the warrant. Iranian law requires that defendants be informed of charges against them within 24 hours although this requirement is not always adhered to.

In the case of lesser charges, including misdemeanours such as breach of trust or failure to pay alimony, the defendant receives a summons to appear in court. The summons is issued by the judicial authorities and sent to the address of the defendant, by the bailiff of the Ministry of Justice. Unlike arrest warrants, a summons can be served regardless of whether or not the defendant is present and can be kept by the individual concerned. In contrast, an individual charged with serious offences such as manslaughter or major drug offences would not be summonsed to appear in court. Rather, a person charged with an offence of this severity, would simply be arrested by police who would possess an arrest warrant.

After its issue by the judicial authorities to the police, the arrest warrant is retained by the police who place it on the defendant's file. It is not returned to the judicial authorities. Under no circumstances would a copy of an arrest warrant be given to the person charged or to a member of his family. The defendant never has the right to see it. As previously mentioned, the defendant's only right is to be told within 24 hours the reason for his detention.

The Embassy's legal firm has seen many forged Iranian official documents including arrest warrants. Forgeries often consist of whiting out some descriptions on the summons (not on an arrest warrant because the defendant would never have this in the first place) and then making a photocopy of the document, or simply printing fake judicial documents and then filling them in.

Our legal firm has advised that it would be willing to examine any documentation or make limited enquiries with the courts. It is in a position to establish if particular cases genuinely exist in the courts."

8 The Tribunal member did not accept the truthfulness of the applicant. Her first stated reason related to the "warrant". The member said:

"The applicant's claims were unsupported. The Tribunal does not accept that the warrant he submitted is legitimate. Country information indicates that warrants are not given out. The applicant agreed with this but explained that this was a warrant from the head of internal security at his workplace. The explanation makes no sense."

Discussion

9 In arguing the applicant's case, Ms Price put a number of submissions. However, the only submission that arguably raises a ground of review falling within the jurisdiction of the Court concerns the Tribunal's treatment of the "warrant". Ms Price pointed out that the Tribunal appears to have rejected the authenticity of the warrant on the basis that "warrants are not given out". She says the Tribunal reasoned that, if this was an authentic warrant, it would not have been left at the applicant's home in Iran; as this document was given out, it could not be an authentic warrant; and the fact that the applicant provided this unauthentic document to the Tribunal was a reason for concluding he was unworthy of belief. However, Ms Price also pointed out that the claim that "warrants are not given out" was based on the DFAT communication of 4 July 1997, which communication also referred to summonses being "issued by the judicial authorities and sent to the address of the defendant". Ms Price said that, if this document was truly a summons, there would be no reason to doubt its authenticity; further, the document read like a summons, in requiring the applicant to attend a particular court at a particular time. Ms Price drew attention to the statement by the Australian Embassy in Teheran that "[o]ur legal firm ... would be willing to examine any documentation or make limited enquiries with the courts". Ms Price submitted the Tribunal could, and should, have taken advantage of this offer before reaching a conclusion, adverse to the applicant, about the authenticity of the document he produced. She referred to s 427(1)(d) of the Migration Act 1958.

10 Ms Price's criticism of the Tribunal is fully justified. The member plainly rested her conclusion on the fact that the document was called a "warrant", and the DFAT information that arrest warrants are not given to the person charged or to a member of that person's family. The Tribunal member appears not to have realised that her conclusion that this document was a warrant depended entirely upon the accuracy of a term used in an "unofficial translation" of the document. If the translator, who may not have been legally qualified, chose an inappropriate term, the member's conclusion is vitiated.

11 Section 427(1)(d) of the Migration Act authorises the Tribunal to require the Secretary of the Department of Immigration and Multicultural Affairs "to arrange for the making of any investigation ... that the Tribunal thinks necessary with respect to the review and to give to the Tribunal a report of that investigation ...". It would have been possible for the Tribunal to take advantage of this power, in the present case, by requiring the Secretary to arrange for an investigation of the authenticity of the so-called "warrant". Having regard to the offer made by the Embassy in 1997, it is remarkable that the Tribunal member failed to do this. That failure may have done a serious injustice to the applicant, compounded by the fact that the Tribunal member treated the inauthenticity of the "warrant" as a reason for treating the applicant as a person unworthy of belief.

12 It is another matter whether the failure establishes a ground of review available to the applicant under s 476 of the Act. A failure to seek readily obtainable information may have the effect of making a decision unreasonable: see Luu v Renevier (1989) 91 ALR 39 at 49-50. However, that ground of review is excluded from use in the present case by s 476(2)(b) of the Act. In Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71, one of the reasons why I held a Tribunal decision to be invalid was the failure of a member to make a readily available inquiry. However, that conclusion depended on the view that s 420(1) of the Act provided a procedure "required by this Act ... to be observed in connection with the making of the decision", within the meaning of s 476(1)(a). The High Court of Australia has now held that s 420(1) does not provide such a procedure: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21; (1999) 197 CLR 611.

13 Ms Price relied on two grounds of review: error of law and reliance on irrelevant material rather than relevant material. The former ground is available under s 476, provided it is an error of law involving an incorrect interpretation of the law or an incorrect application of the law to the facts as found by the Tribunal: see s 476(1)(e). However, I cannot regard the incorrect characterisation of a foreign document as an error of law.

14 Section 476(1)(d) refers to "an improper exercise" of the Tribunal's power. Although in other contexts it would do so, in s 476 that ground does not include taking into account an irrelevant consideration or failing to take a relevant consideration into account: see s 476(3)(d) and (e). However, such conduct may be a jurisdictional error covered by s 476(1)(b): see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 at para 82. Accordingly, if the Tribunal's neglect to inquire about the warrant amounted to taking into account an irrelevant consideration or a failure to take account of a relevant consideration, the applicant might have an available ground of review. The difficulty, as it seems to me, is that the Tribunal's failure to inquire was neither of these things. The document was clearly relevant to the applicant's case; that is why the applicant provided it to the Tribunal. The Tribunal gave it careful consideration, and took it into account in reaching its final conclusion, as the applicant had wished. The applicant's difficulty is that the Tribunal treated the document as detrimental to, rather than supportive of, his case. If that was an error, it was because of a factual error by the Tribunal, in relation to categorisation of the document, rather than an error of methodology or reasoning.

15 I do not think either of the grounds of review advanced by Ms Price has any relevance to this case.

16 I have considered whether s 476(1)(g) applies. That paragraph provides a ground of review "that there was no evidence or other material to justify the making of the decision". That ground has to be read with s 476(4) which reads:

"The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:

(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

17 Section 476(4)(a) has no possible application to this case. The question is the relevance of para (b).

18 The relationship between s 476(1)(g) and s 476(4)(b) was recently explained by a Full Court in Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 at para 35:

"The application of s 476(1)(g) and s 476(4)(b) in any particular case requires the following steps:

* A relevant particular fact first must be identified.

* Then it is necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact. If there was such evidence, the ground cannot be made out.

* If there was no such evidence, it is next necessary to apply the second limb of (4)(b). If there is no evidence, on review, to show that the fact did not exist, the ground cannot be made out.

* If there is evidence, on review, to show that the fact did not exist, it is then necessary to apply the first limb of (4)(b). That requires an analysis of the Tribunal's reasoning to determine whether its decision was based on that fact."

19 In the present case, the Tribunal said it "does not accept that the warrant ... is legitimate". On its face, this is a statement of refusal to make a finding of fact, rather than a positive finding. However, it might be regarded as the equivalent of a finding that the document was not "legitimate", especially as the Tribunal allowed its conclusion to operate adversely to the applicant's credit. So I will make the assumption that the Full Court's first requirement (in Ali Miahi) is satisfied in this case: there is a finding of a relevant particular fact: that the "warrant" is not an authentic Iranian document. I make the further assumption that the second requirement is satisfied: there was no evidence to justify that finding. However, that does not suffice. It is still necessary for a person who relies on s 476(4)(b) to show "the fact did not exist". That requires the applicant, in the present case, to show that the "fact" of inauthenticity did not exist; that is, to show the document is not inauthentic, but an authentic warrant. The applicant has not done this; the nature and status of the document, under Iranian law, are left uncertain.

20 It seems to me that, despite the unsatisfactory way in which the Tribunal handled the issue of the warrant, there is no ground of review available to the applicant in relation to it.

21 As I mentioned, Ms Price contended the Tribunal should have invoked the power given to it under s 427(1)(d) of the Act to require the Secretary of the Department to make an investigation regarding the authenticity of the "warrant". However, she recognised that this provision conferred on the Tribunal a power, to be exercised at its discretion, rather than a duty. She accepted that, however regrettable it is that the Tribunal did not decide to exercise this power, it was not legally bound to do so.

22 I agree with Ms Price's assessment of the situation in relation to s 427(1)(d). Although the Tribunal's omission to inquire is unfortunate, the Court has no power to do anything about it. The application must be dismissed.

23 No criticism may be made of the Minister's conduct of this proceeding. Accordingly, the usual course ought to be taken in relation to costs. The applicant must pay the respondent's costs.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated: 27 July 2001

Counsel for the Applicant:	L B Price
Counsel for the Respondent:	P MacLaren
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 July 2001