WABY v Refugee Review Tribunal [2005] FCA 209 (8 March 2005)

FEDERAL COURT OF AUSTRALIA

WABY v Refugee Review Tribunal [2005] FCA 209

MIGRATION – judicial review – procedural fairness – adverse findings as to credibility of applicant and witness – whether failure of procedural fairness by failure to put proposed findings to applicant – findings going to characterisation and non-acceptance of applicant’s evidence – no want of procedural fairness in failing to put those characterisations and conclusions to the applicant before reaching a decision

Migration Act 1958 (Cth)

WABY v Minister for Immigration and Multicultural Affairs [2002] FMCA 61 cited
WABY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1091 cited
Port of Melbourne Authority v Anshun Pty ltd [1981] HCA 45; (1981) 147 CLR 589 cited

WABY v REFUGEE REVIEW TRIBUNAL and THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
WAD206 of 2004

FRENCH J
8 MARCH 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W206 OF 2004

BETWEEN:	WABY APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT
JUDGE:	FRENCH J
DATE OF ORDER:	8 MARCH 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent’s costs of the application.

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	W206 OF 2004

BETWEEN:	WABY APPLICANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT

JUDGE:	FRENCH J
DATE:	8 MARCH 2005
PLACE:	PERTH

1 The applicant came to Australia from Iran in November 2000. He came without lawful authority. He applied for a protection visa upon the ground that he faced a real risk of persecution if returned to Iran as a suspected sympathiser or member of the opposition group, Mojahedin-e-Khalq (MKO). His application for a protection visa was refused. He sought review of the application in the Refugee Review Tribunal (the Tribunal). That application also was refused. He sought judicial review of the Tribunal’s decision in the Federal Court. That application was remitted to the Federal Magistrates Court which heard and dismissed it. He then appealed to the Federal Court against the decision of the Federal Magistrates Court. The appeal was dismissed. He sought special leave to appeal to the High Court but did not proceed with that application. Subsequently, however, in May 2004, the applicant filed an application in the original jurisdiction of the High Court seeking orders nisi for writs of certiorari and mandamus and for injunctive relief. The proceedings were remitted to this Court on 19 August 2004. The substantial ground upon which the proceedings are brought in this Court on remitter from the High Court is that the Tribunal failed to give him an adequate opportunity to address it on matters in respect of which the Tribunal found against him, particularly on matters going to his credibility so the Tribunal’s decision was said to have been infected by procedural unfairness. This was essentially the basis upon which the Tribunal’s decision had been considered by the Federal Magistrates Court and on appeal by Tamberlin J in the earlier proceedings.

2 In my opinion, the applicant is not entitled to re-agitate those matters in these subsequent proceedings. In any event, having regard to the merits of his contentions, his application should be dismissed.

3 The applicant is an Iranian national who was born in Khozestan, Iran on 23 August 1974. He arrived in Australia on 2 November 2000 by boat without lawful authority. He was taken into immigration detention and has remained in detention since that time.

4 On 14 November 2000, the applicant was interviewed by an officer of the Department of Immigration and Ethnic Affairs. The notes of the interview taken by the officer record that the applicant’s father and mother are both still living in Iran. He has two sisters and five brothers. They are all resident in Iran. He is the holder of a High School Certificate. He worked as a welder in an oil refinery between August 1997 and March 1998, as a plumber’s assistant between August 1999 and January 2000 and claims to have done automotive electrical work in his brother’s shop in 2000. The record also indicates that he did National Service. He describes his religion as Muslim.

5 According to the record the applicant told the interviewer that he had travelled to Australia through Malaysia and Indonesia. He said he travelled on a fake Afghani passport.

6 Asked why he left Iran, the applicant is recorded as saying that he had an argument with a cleric who was the head of an ‘advertising organisation’ occupying a building which faced his home. In later documents, indicative of the limitations of the interpretation provided at first interview, the ‘advertising organisation’ was identified as an Islamic Propaganda organisation. The organisation wanted to extend the front wall of the building so far forward that it would prevent the applicant and his family from bringing their car into their house. They complained to the local authority and to the oil company that owned the building opposite. The extension was stopped. The cleric subsequently spoke to the applicant’s father and said the extension would proceed but not go so far forward. The applicant ‘got into an argument’ with the cleric about the continuation of the work which he had been told by the local authority was illegal. The cleric pushed the applicant’s father and the applicant pushed the cleric who fell over. The cleric’s driver joined in and blows were exchanged. The applicant’s father was upset that the applicant had assaulted the cleric and the driver. He pushed the applicant into the house and told him to go inside.

7 The applicant then went to his nephew’s house. The cleric and the driver went off to find ‘a prosecutor’. About five or six people, including a prosecutor, went to the applicant’s father’s house looking for the applicant. They searched the house and found two illegal satellite dishes which belonged to the applicant’s nephew. They also found some wine and some confidential Ettala’at information. Ettala’at is an official security organisation. According to the record of the applicant’s interview the information was in the form of a copy of somebody’s ‘confession’ relevant to Iran’s history. The information had been obtained by a nephew of the applicant who worked in Ettala’at. The prosecutor’s search party wanted to know how the applicant had obtained that material.

8 According to the record of interview, the applicant had obtained the material from his nephew who worked in Ettala’at who had in turn obtained it from a friend. However when the friend was informed of the discovery he became upset as he had only given it to the applicant’s nephew and not for disclosure to anyone else. The nephew was asked not to mention the friend’s name if he were caught. The friend threatened to allege that the information had been stolen. He advised the applicant’s nephew that if the applicant were caught he should not mention the friend’s name. The friend advised the nephew to tell the applicant to run away.

9 The applicant claimed that his father and younger brother were arrested by the ‘prosecutor’ and his men. When the applicant heard about their arrest he said he wanted to give himself up but his family would not allow him to do that. They told him he should leave and then they could blame all the contraband materials, the satellite dishes and the wine on him. The applicant told the departmental officer that his family had business connections. They would blame everything on him including the presence of the document with a confidential stamp on it. On the night of that same day the applicant went to Ahwaz. His family decided to help him to flee the country. His nephew had an acquaintance in Ahwaz who introduced him to an Afghani man. He stayed in his maternal cousin’s home in Ahwaz.

10 According to the record of interview the applicant told the departmental officer that neither he nor his family had any involvement in anti-government activities. He had no involvement with any political group or organisation. However he said he had a little action group that was active in elections and also a study group. It didn’t have a name. It was a youth club.

11 The applicant lodged an application for a protection visa on or about 1 March 2001. In that application the question was put (question 36), ‘Why did you leave that country?’ The answer to that question was typed and evidently prepared with the assistance of a migration agent. In his answer the applicant described himself as an Iranian asylum seeker. He said that now he was applying for protection through a lawyer he was able to speak about things that otherwise he would not have been able to talk about.

12 The applicant said that he and his brother had had a sound and vision shop in Iran and were selling electrical equipment and recording and selling visual and audio material. The applicant said that since his teenage years he had not been on ‘good terms with the Regime’. He saw the cruelty of the regime and what it did to the people and to Iran. The Mullahs had destroyed Iran and kept the country back. This made him suffer for his country. The applicant said that he used to copy opposition speeches and movies and sell them to special people who were interested in them. Although he did not like the way that the opposition group MKO was acting, he believed that the Mullahs’ regime must be overthrown and that he should cooperate with any opposition group which was acting against them.

13 The applicant said his nephew had an old friend who was an employee of the government security organisation, Ettala’at. The friend told the applicant’s nephew that his life was hell and that he was suffering in his job but he could not do anything because Ettala’at was an organisation from which you could never escape. Ten days before the applicant’s departure from Iran his nephew’s friend passed him secret information from Ettala’at. This was about ‘pressure groups’ such as Ansar-e-Hezbollah who were acting secretly. Although not clearly stated in the applicant’s submission to the Tribunal this appears to be a reference to unofficial pro-government groups. His nephew’s friend was unhappy with the pressure groups and with Ettala’at. He wanted to do something for his country so he collected information about what the applicant described as these ‘Plain Clothes’ people including their relationship with the Supreme Leader of Iran and the crimes they committed against the people. The applicant’s nephew’s friend intended to provide the information to two well-known anti-regime lawyers, Ebadi and Rahami. Both were campaigners for freedom in Iran. The applicant said that ‘we’ (presumably a reference to his nephew, his nephew’s friend and himself) knew that both Ebadi and Rahami were working on the ‘pressure groups’ issue. They intended to pass the secret information to them. The applicant kept the information at his home and was busy editing and classifying it. He also intended to send some of the documents to a newspaper which was a popular and free newspaper. At that time, however, he said, an incident occurred that ‘changed everything’.

14 He then referred to the incident involving the cleric neighbour whom he described in the statement as a ‘Mullah’. He identified the Mullah as the head of an Islamic Propaganda Organisation. He was not on good terms with him because he used to complain about the illegal music played at their home.

15 The applicant said that the day before he was going to submit the confidential information from Ettala’at to a newspaper his father had an argument with the Mullah who assaulted his father. The applicant then pushed the Mullah and caused him to fall down. The applicant said he did not take the incident seriously. He went with his nephew to the Head of the Police Unit near where he lived to ask for help ‘to amend what I had done’. While he was there the Mullah brought in the City Governor and some guards who raided the applicant’s father’s house. They confiscated satellite equipment and started searching the house. They took the videotapes and the secret documents which had been hidden. They arrested the applicant’s father and one of his brothers. The applicant said he was informed about these events by a relative and subsequently escaped to Ahwaz with the relative’s help. While he was in Ahwaz the friend who worked for Ettala’at got in touch with the people with whom he was staying and said that his family had told the authorities that they were not aware of the existence of the information at their home and that it was completely the applicant’s responsibility. The applicant was warned that he should flee the country as fast as possible.

16 The arrangements for the applicant to leave the country were put in place by his relatives. He hid in Ahwaz for ten days then went to Mehrabad airport where a people smuggler was waiting for him with a forged passport. They then flew to Malaysia. He was given a contact in Malaysia and flew to Kuala Lumpur. While in Malaysia he got in touch with his relatives and was told that Ettala’at had harassed his family. They had told his family that the applicant was against Islam and that he was a hypocrite which is code for an MKO member. The applicant was also told that ‘his shop’ had been confiscated.

17 The applicant referred in his supporting statement to another confrontation with the regime when he was doing his national service in Sepah, the Iranian Revolutionary Guards Corps. He saw some commanders take a bribe to allow drugs to be brought into the country. When they saw that he was not happy with what they were doing they put him in an isolation cell for four days. It was summer and the heat was 50 degrees. After four days he was ‘nearly dead’. They took him to hospital where he recovered. He also saw Sepah execute a boy aged 19 and another aged 15 for committing sodomy. The applicant said that when he saw these things he had become determined to do as much as he could to reveal the ‘bloody crimes’ of the regime against its people. He said he distributed anti-regime writings and audio material to make people aware of what was going on in their country. He said he wanted to inform the departmental case officer about the dictatorship and the cruelty of the regime but could not tell his whole story in the first interview. He had been warned by others that all the Iranians coming to Australia would ultimately be deported, and that Australia was on good terms with Iran. He was too afraid at his initial interview to show himself as anti-regime. He was afraid that some of the information would leak back to Iranian authorities. Now that he had obtained a private lawyer who had nothing to do with the government or the Department of Immigration he felt sure that what he thought was wrong and that no information about him would leak back to the Iranian regime.

18 On 4 April 2001, a delegate of the Minister refused the application for a protection visa. The applicant then applied to the Refugee Review Tribunal (the Tribunal) on 5 April 2001 for a review of the delegate’s decision.

19 In support of the application for review the applicant’s migration agent, Dr Al Jabiri sent to the Tribunal a submission applicable to Iranian asylum seekers generally. It included quotations from independent assessments of the human rights situation in Iran. He quoted the October 2000 edition of the UK Country Assessment on Iran:

Dr Al Jabiri referred to the role of religious/morality internal security authorities at the local level which generate persistent human rights abuses in the name of fundamentalist beliefs. He referred to Ettala’at which he described as the popular name for the agents of the Ministry of Security and Intelligence (Fezarat-e-Ettela’at). He also referred to the Sepah Pasdaran as the enforcers for Ettala’at. The Sepah is known outside Iran as the Iranian Revolutionary Guards Corps. He also referred to Ansar-e-Hezbollah (literally ‘Helpers of the Party of God’) which he described as ‘an extra-legal volunteer organisation of little more than street thugs ... who operate as an almost independent group of clerical enforcers’. He referred also to the Basij (literally meaning ‘collective’), whose members operate mainly as a volunteer ‘religious’ police force and demonstration disrupter. He questioned in his submission the contemporary relevance of information provided in country profiles from the Department of Foreign Affairs and Trade (DFAT) which were published in March 1996. He described the account of political developments in that material as ‘now completely out of date’. He said that its claims of ‘considerable freedom of expression’ and what would constitute ‘minor’ political offences were clearly woefully inaccurate in the light of developments in Iran chronicled by more up to date independent reports from the UK, the US and the UN.

20 The submission made some particular points relating to the credibility of applicants. It referred to the responsibility to decision-makers in dealing with credibility and judging questions of inconsistency and vagueness in presentation.

21 The applicant made a supplementary written statement to the Tribunal. It was provided in part by way of response to some of the points raised by the Minister’s delegate in rejecting the original application for a protection visa. In that statement the applicant advised the Tribunal that he had informed the delegate that he always had a problem of not being able to express himself. He had never been a good speaker. He said that in Iran he had been in a very good financial situation. He liked his country and his family very much. The Islamic regime widely abused Islam. He was disgusted with Islam. He sought a way to do something and show the ‘disgusting reality’ of the regime to the people. He had a sound and vision equipment shop and used to sell films and CDs. He started recording and copying Mojahedin films which he provided to his friends and which he sold to others.

22 The applicant said in the supplementary statement that Ettala’at had previously given him a warning about some articles he had written, particularly one called ‘Today’s Masjed Soulaiman (sic), Tomorrow’s Iran’ which he sent to the newspaper, Nour-E-Khozestan. This was an article critical of the deteriorating situation in Iran in relation to the availability of drinking water. Letters or copy letters and translations thereof were also included with the supplementary statement. These were evidently intended to corroborate the applicant’s complaint that guards in plain clothes had entered and searched his home. He included a letter purporting to come from what was described as the Masjed Solaiman Distribution and Services Guilds Union requiring his attendance at the Union to ‘clarify your business situation’. Failure to attend would lead to his business unit ‘being locked up’. That document was also dated 25 September 2000.

23 The Tribunal hearing proceeded on 29 May 2001. A transcript was before the Court. The applicant gave his evidence to the Tribunal through an interpreter. The transcript which was prepared on his behalf for the purposes of the present application included corrections to the oral translation given by the interpreter at the hearing. The applicant was questioned by the Tribunal about his various claims sometimes sceptically. After he finished giving his evidence his witness, who had been in the same detention centre but had been issued a protection visa, also gave evidence. The witness said he had had a connection with the applicant’s brother in Iran. They had been classmates. He said he had seen films about the MKO. He also saw confidential information obtained by the brother. This witness was questioned, again sceptically, by the Tribunal and at times somewhat impatiently with the Tribunal asking him to be brief. At the end of the hearing the Tribunal member said:

24 On 11 June 2001, a post hearing submission was sent to the Tribunal by Dr Al Jabiri. In that submission, Dr Al Jabiri summarised the applicant’s background against the Convention reasons for refugee status and analysed his core claims. He also provided some background on the Mojahedin-e-Khalq organisation known as MKO. The post hearing submission attached newspaper articles published in an Iranian newspaper about civic problems in Masjed Solaiman. The migration agent argued that there was a high risk that the Ettala’at may now have marked the applicant’s file as a ‘monafeq’ meaning a two-faced supporter of the enemy MKO. For the Ettala’at that would be sufficient to mark the applicant for extra-judicial execution without the trouble of trial at a revolutionary court.

25 The submission also made a number of points relating to the credibility of the applicant under the heading ‘HIS CREDIBILITY’. These submissions referred to the documentary evidence and the difficult situation in which the applicant found himself on arrival and at his first interview. The submission stated:

26 By way of conclusion the agent submitted that the applicant met the definition of a person who has ‘a well-founded fear of being persecuted for reasons of ... race, religion, membership of a particular social group and/or political opinion.’

27 On 31 October 2001, the Tribunal affirmed the decision not to grant a protection visa.

28 The Tribunal summarised the text of the applicant’s arrival interview and set out in full the text of his answer to question 36 on the protection visa application as well as his answers to other questions on that form (Qs 37-40). It set out also the text of the supplementary statement tendered to the Tribunal on 28 May 2001.

29 The Tribunal referred to the evidence taken at the hearing on 29 May 2001 giving an account of the various exchanges between the Tribunal and the applicant at the hearing. It included reference to those parts of the evidence in which it had expressed to the applicant its perplexity or difficulty in understanding his evidence. The Tribunal referred to the evidence of the applicant’s witness and then set out at length country information. The first reference in the country information was to the US State Department’s Country Reports on Human Rights Practices- 2000 released by the Bureau of Democracy, Human Rights and Labor in February 2001. That material painted a bleak picture of life in Iran and the inhuman character of its governmental authorities, eg:

The report also referred to political and other extra-judicial killing and the responsibility of the Iranian government for numerous extra-judicial killings. Citizens continue to be tried and sentenced to death in the absence of sufficient procedural safeguards. The domestic press stopped reporting most executions in 1992 but they continue in substantial numbers. A November 1995 law criminalised dissent and applied the death penalty to offences such as ‘attempts against the security of the State, outrage against high-ranking Iranian officials, and insults against the memory of Iman Khomeini and against the Supreme Leader of the Islamic Republic’. UN representatives noted the absence of procedural safeguards in criminal trials.

30 Although the Constitution of Iran prohibits arbitrary arrest and detention these practices remain common. There is apparently no legal time limit for incommunicado detention or any judicial means to determine the legality of detention. Suspects may be held for questioning in gaols or in local Revolutionary Guard offices. Although reliable statistics are not available it was said that international observers believe that between scores and hundreds of citizens are detained for their political beliefs. The court system is not independent and is subject to government and religious influence. It serves as the principal vehicle of the State to restrict freedom and reform in society.

31 The Tribunal reasons also referred to the Annual Report of Amnesty International for 2000 which observed that hundreds of people, including possible prisoners of conscience, were held without charge or trial following student demonstrations against growing restrictions on freedom of expression and the closure of the daily newspaper, Salam. Most were released within two months, but hundreds remained in detention at the end of the year and at least four people were sentenced to death. The report referred to continued accounts of torture and ill treatment. Amnesty International recorded 165 executions in 2000 although the true number may have been considerably higher. The special representative of the UN Commission on Human Rights continued to be denied access to the country during the year.

32 The Tribunal then referred to an earlier report of DFAT, ‘Country Profile, Islamic Republic of Iran’, dated March 1996. That report observed that although people are relatively free to grumble about the government to friends and strangers alike and that ‘most do without adverse consequences’ those who want to engage in political activism outside set parameters were running the risk of intimidation, detention, interrogation and criminal penalties including execution for serious offences. The regime was said to ruthlessly suppress political dissent. Any organised opposition activities such as making public speeches, producing and distributing anti-government tapes and literature or involving in acts of sabotage and terrorism against the regime’s interests are dealt with harshly. The judicial system as applied to those charged with political offences was described as ‘arbitrary and harsh with little regard to due process and the rights of the accused’.

33 The Tribunal also referred to material dealing with the treatment of family members of dissidents and in doing so relied upon the March 1996 Report of DFAT. It observed that if an asylum seeker departed Iran illegally and/or was a fugitive from justice, it was not uncommon for close family members to be questioned by authorities and in some cases for harassment to occur. Knowledge that an individual had sought political asylum abroad at worst would not result in much more than verbal harassment unless the asylum seeker concerned had a high opposition political profile. The Tribunal went on to discuss the role of the MKO. This it described as Iran’s largest opposition group, exiled from Iran in 1981 and presently headquartered in Baghdad. The MKO was said to support clandestine resistance in Iran and to have distributed newspapers and pamphlets in support of families of imprisoned Mojahedin and launched an appeal for militants to join the organisation. The Tribunal said in its reasons that the MKO was still regarded as a major threat to security and stability by Tehran. The government of Iran has a tendency to blame the MKO for almost every security incident that occurs. Such incidents tend to reactivate official harassment of those with Mojahedin connections and trigger security sweeps.

34 The Tribunal referred to the UK Iran Assessment published by the Country Information and Policy Unit of the United Kingdom Immigration and Nationality Directorate in October 2000. That report indicated that the traditional court system is not independent and is subject to government and religious influence. Trials in the Revolutionary Courts where crimes against national security and other principal offences are heard are notorious for their disregard of international standards of fairness. Revolutionary court judges act as prosecutor and judge in the same case. Judges are chosen for their ideological commitment to the system. Pre-trial detention is often prolonged and defendants lack access to attorneys. Indictments lack clarity and include undefined offences such as ‘anti-revolutionary behaviour’, ‘moral corruption’, and ‘siding with global arrogance’. Defendants have no right to confront accusers. Secret or summary trials of five minutes duration are not unknown. The report also indicated that arbitrary arrests and detention has been a feature of Iranian society.

35 In relation to the treatment of MKO sympathisers/activists the Tribunal observed that the treatment handed out to people regarded as MKO supporters was varied. Much would depend on the circumstances of the case and the background security situation. A supporter could get away lightly if nothing could be proven. On the other hand if somebody were caught distributing pamphlets or writing slogans, greater punishment would follow. The period of detention would vary according to the degree of tension evident at the time and place and the assumed importance of the person in security terms. Responses would vary from summary execution to release after a short time.

36 In relation to the return of failed asylum seekers the Tribunal referred to information from the Netherlands Ministry of Foreign Affairs in its Country Report on Iran in December 1998. That report indicated that thousands of Iranians resident abroad would return to Iran each year for short or longer term periods and that in most cases such a voluntary return did not result in any problems. The report referred to the experience of other western countries that Iranian authorities are virtually not interested in the phenomenon of asylum seekers who have exhausted all other legal avenues. The report suggested that Iranian authorities seem to realise that western countries only returned those persons who had exhausted all legal avenues and who had gone through a thorough procedure which ultimately determined that their request for asylum was not politically motivated.

37 The Tribunal also referred briefly to the penalties for illegal departure. While a fine or prison sentence of up to 12 months was open under Iranian law, the most likely penalty for an Iranian who had left Iran illegally was a fine.

38 There followed discussion in the reasons of exit procedures. The thrust of advice in the DFAT Country Information Report of 19 March 1999 was that Iranians wishing to travel abroad whose names were held on a computerised blacklist would find it virtually impossible to have their names removed to enable legal departure.

39 In the ‘Findings and Reasons’ section of its reasons for decision the Tribunal found the applicant to be an Iranian citizen. It treated his contentions as amounting to a claim of genuine and well-founded fear of persecutory treatment by Iranian authorities on the Convention ground of political opinion. This claim was based, as the Tribunal saw it, upon the discovery by Iranian security authorities, while raiding the applicant’s home, of satellite broadcast receiving equipment and documents containing highly critical material concerning the regime.

40 The Tribunal said that it had ‘closely examined’ all the material that was put before it. It acknowledged that in assessment of credibility it should be sensitive to the difficulties often faced by asylum seekers in presenting their claims and should give the benefit of the doubt to those who are generally credible but unable to substantiate all of those claims. The Tribunal said that it recognised the importance of a ‘liberal attitude’ in the proof of refugee status. It accepted the difficulties faced by applicants. However it did not consider that this should lead to an uncritical acceptance of allegations made by applicants. Nor did it mean that the Tribunal should have rebutting evidence available before it could find that a particular factual assertion by an applicant was not made out.

42 The Tribunal found the applicant to be neither well educated nor particularly intelligent. It referred to his statement at the outset of the hearing that he had difficulty expressing himself. The Tribunal claimed to have taken ‘full account of his expressed difficulty’ but found little evidence of any real problem. It noted that he was unable on occasions to respond satisfactorily to questions and that the interpreter found he did not complete sentences while canvassing a range of issues responding to questions. The Tribunal was not convinced that he was a truthful witness on key aspects of his claim. He was said not to be ‘an impressive witness’ in giving consistent and credible testimony about matters which he ought to have been confident and clear about. He was said to have had difficulty providing convincing explanations on issues on which the Tribunal expected straightforward responses. He was said to have been ‘generally unsatisfactory’ in testifying about the circumstances which he claimed led him to depart Iran as a fugitive and in respect of his exit from Iran. He was also said to have been ‘hesitant and unconvincing’ in answering concerns about his claims. While these are no doubt matters within the effectively unreviewable factual judgment of the Tribunal, the confidence with which the Tribunal expressed those conclusions when dealing, across a cultural divide, with a foreign national acknowledged to be ‘not well educated nor ... particularly intelligent’, leaves a sense of unease about the extent to which its judgments were based upon interpreter mediated impressions, the reliability of which is essentially unverifiable.

43 The Tribunal turned to the applicant’s work history which was said to be presented in his testimony ‘in a confused and confusing fashion over periods that conflicted with other evidence before the Tribunal which the Applicant had supplied earlier to the department’.

45 The Tribunal referred to the applicant’s claim to have exited Iran using a forged Afghani passport. He had failed to give a satisfactory explanation as to why he did not leave Iraq on his own passport. He was ‘very evasive’ in doing so. The Tribunal considered his account of a coincidentally contemporaneous need on the part of his brother for his passport to be implausible. It found his explanation for the unavailability of his passport being that his brother needed it to travel to Dubai on a business trip and that his brother removed the applicant’s photograph and substituted his own photograph, to be a fabrication.

46 The Tribunal referred to the difficulty which it had experienced in eliciting from the applicant his knowledge of whether his family had suffered any harassment or mistreatment from the authorities and whether a warrant of arrest or court process had issued against him on account of any of the matters which he claimed caused him to flee Iran. In this connection the Tribunal referred to country information that Iranian security authorities consider political activists and their supporters to be a serious security threat and that strong pressure can be brought on family members to locate suspects. The Tribunal was not satisfied with the applicant’s claim that his parents’ home had been raided, nor that his father and brother had been either questioned, detained or harassed in any way by Iranian authorities before or after he left Iran.

47 The Tribunal was satisfied that had the applicant genuinely been fleeing authorities because he had become a suspected political dissident and MKO member, his family could reasonably be expected to have been subjected to interrogation and detention and/or some serious mistreatment and constant surveillance. The Tribunal also considered it highly implausible that the applicant’s brother, who was said to have been a partner in the shop and involved in the distribution of MKO video tapes, could escape the unwelcome attention of Iranian internal security officials by simply scape-goating the applicant.

48 The Tribunal referred to the undated letter of complaint said to have been written by the applicant’s father to the Masjed Solaiman Administration of Justice. Its contents did not support the applicant’s account in his protection visa application when he said he was close to home seeing a friend of the Head of the Police Unit about the incident with the next door neighbour when guards arrived at his house. There was no suggestion of the applicant ‘disappearing’ as suggested in the letter written by his father until after the family home had been searched and his father and brother arrested. The Tribunal did not consider it in the least plausible that the applicant’s father would have lodged a complaint if his son had genuinely been found to have been in possession of banned MKO films, confidential Ettala’at information and was suspected of being an MKO member.

49 The Tribunal also referred to what it described as ‘an important inconsistency’ between the applicant’s account in his protection visa application and that in his supplementary statement of 28 May 2001. In the supplementary submission he said that when guards came to his house to arrest him he fled his home before they could do so, but at page 2 of his response to questions 36 to 40 in his protection visa application, he stated that he only went into hiding after hearing of the raid from a relative.

50 The Tribunal found the evidence of the confiscation by Ettala’at of the brother’s shop as very unconvincing. The Tribunal was not satisfied that the warning letter of 25 September 2001 from the Distribution and Services Guilds Union lent any support to the applicant’s claims and in light of its findings on his credibility was not satisfied that it was a genuine notice or warning letter issued by the Union.

51 The Tribunal said it was not impressed with the applicant’s evidence about his conduct of an audio vision electrical shop in partnership with one of his brothers. It referred again to his ‘very unsatisfactory evidence’ of his work history. He was also unconvincing in his evidence in explaining why he did not mention his partnership in the audio vision business at his first opportunity. It was not satisfied that the applicant ever conducted such a business or video taped MKO films and speeches. The witness he called did not corroborate his evidence and his evidence was thoroughly unconvincing and inconsistent.

52 The Tribunal was not satisfied with the applicant’s explanation of his ‘tardy reliance’ on one of his main grounds for claiming protection, namely the Iranian authorities belief that he is a member of or supporter of the MKO. He gave ‘most unsatisfactory evidence’ explaining how and when he became interested in politics and developed an interest in and support for the MKO. The applicant’s claims, initially made in the departmental interview, that he had reproduced an MKO pamphlet were not pressed in evidence before the Tribunal. As to the claimed possession of confidential Ettala’at information, the Tribunal was not satisfied that the applicant did possess such documents. Again it described his testimony as ‘unconvincing’ and lacking ‘coherence’. The Tribunal did find the account of the incident with the neighbouring Mullah to be credible. It accepted that the applicant had the encounter with the Mullah but was not satisfied that even if he were to be criminally charged, any response from the Iranian government would engage protection obligations under the Refugees Convention.

53 In respect of the satellite dishes, the Tribunal was not satisfied that the applicant would face persecution under the Convention for possession of that equipment which it accepts the applicant may have possessed. Any action by the authorities in regard to those items was likely to be in terms of the enforcement of a law of general application.

54 The Tribunal went on to find that the applicant left Iran legally and without difficulty through Mehrabad Airport on his own passport and that he had not had to resort to the use of an Afghan passport as he had no reason to flee Iran as a fugitive. It made no finding on a range of other possible reasons that may have motivated the applicant’s departure from Iran. However it was clear on country information that many Iranians were looking for better lives elsewhere. The Tribunal found that if the applicant did leave Iran illegally, he did so for reasons unrelated to the Refugees Convention. On the basis of the finding that he had left Iran legally and that he did not commit any act that might have attracted the adverse attention of Iranian authorities, the Tribunal did not accept that the applicant would face any serious difficulty upon his return to Iran. The Tribunal also rejected the proposition that the act of applying for asylum abroad would expose the applicant to persecution in Iran. It referred in this respect to country information indicating that Iranian asylum seekers who had exhausted all legal avenues could return to Iran even if they did not hold Iranian documents and could not prove that they had left Iran legally in the past.

55 For the preceding reasons, the Tribunal rejected the applicant’s claims and affirmed the delegate’s decision.

56 An application for an order for review of the Tribunal’s decision was filed in the Federal Court on 13 November 2001. That application was transferred to the Federal Magistrates Court by an order made by Lee J on 21 March 2002. The application was dismissed by Driver FM on 8 April 2002 – WABY v Minister for Immigration and Multicultural Affairs [2002] FMCA 61. The applicant appealed against the dismissal of his application by the Federal Magistrates Court. That appeal was dismissed by Tamberlin J, exercising the appellate jurisdiction of the Court, on 6 September 2002 – WABY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1091. An application for special leave to the High Court was filed but was later discontinued.

57 In May 2004 the applicant commenced proceedings in the original jurisdiction of the High Court. He sought orders nisi for writs of certiorari and mandamus and for injunctive relief. On 19 August 2004, Kirby J ordered by consent that the proceedings be remitted to the Western Australian District Registry of the Federal Court and that the action proceed as if the steps already taken in the action in the High Court had been taken in the Federal Court.

58 The grounds of the application were set out in the draft Order Nisi which was filed in the High Court on behalf of the applicant. In written submissions filed on 30 November 2004, the applicant indicated that ground 3 would not be pursued. The first limb of each of grounds 4, 5 and 6 would not be pursued. At the final hearing on 3 December 2004, counsel for the applicant also indicated that ground 2 would not be pursued. The grounds of the application which were then pursued were as follows:

59 As appears from the above and as was conceded at the hearing, grounds 4, 5 and 6 are all specific applications of ground 1.

60 The application for judicial review which was remitted to the Federal Magistrates Court was handwritten by the applicant in a common form reflecting standard but unparticularised grounds for judicial review. The applicant represented himself before the Federal Magistrates Court, attempts to secure a pro bono lawyer to represent him having been unsuccessful.

61 The learned magistrate noted that at the time of his decision there were differing views in the Federal Court about whether or not a want of procedural fairness could vitiate a decision in the face of the privative provision which had by that time been introduced into the Migration Act 1958 (Cth). The learned magistrate found, however, that there was no breach of the common law rules of procedural fairness in the case. He specifically considered the question whether the Tribunal fell into error in failing to give the applicant the opportunity to comment upon adverse conclusions that the Tribunal proposed to draw. He noted that the applicant had been given a general invitation to put in further submissions following the hearing and that the invitation was given both in writing and orally. The applicant exercised the opportunity to put in further written submissions. The learned magistrate said (at [27]):

62 On the appeal before Tamberlin J one of the contentions advanced on behalf of the applicant, who was then legally represented, was that the Tribunal had breached the requirements of procedural fairness. It was said that the Tribunal had failed to comply with the requirements of s 424A by failing to furnish the applicant with particulars in writing of matters relied upon by the Tribunal including general country information and the Tribunal’s lack of satisfaction with the evidence of the applicant’s witness. A further contention was that the learned magistrate had erred in not finding that the Tribunal breached the rules of common law procedural fairness in failing to adequately furnish particulars of those matters.

63 Tamberlin J held that in the case before him it had not been established that any information existed or was used by the Tribunal that the applicant could not reasonably have expected to be used in the way that it was. His Honour said (at [21]):

In the light of the observations made both in the Federal Magistrates Court and on appeal in this Court and the basis upon which the application for review of the Tribunal’s decision was considered, it is difficult to see how it could properly be open to this Court to revisit those findings which canvass via grounds the question whether the Tribunal acted fairly in making findings adverse to the applicant without first notifying him of matters upon which it intended to act in so doing.

64 It is true that in the present application the applicant has, with the assistance of legal representation, set out with some particularity the matters in respect of which it is said that the Tribunal failed to accord him procedural fairness and that these go beyond the matters referred to in the earlier proceedings. But they are matters that clearly could and should have been within the scope of those previous proceedings which were commenced and determined in the Federal Magistrates Court and in this Court so long ago. In my opinion, irrespective of the merits of the case at this stage, relief should properly be denied on the basis of the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; (1981) 147 CLR 589. In addition, the very substantial delay in the case between the time that Tamberlin J gave his judgment and the time at which proceedings were instituted in the original jurisdiction of the High Court is unexplained and militates against the grant of any relief in this case. Notwithstanding these conclusions I will have regard to the merits of the application.

65 Counsel for the applicant set out some fourteen findings against the applicant’s credibility which had been made by the Tribunal in its reasons.

66 In relation to the various findings against the applicant’s credibility it is said that the Tribunal did not raise with, or put to, the applicant certain matters during the course of the hearing or otherwise. These were the matters reflected in its adverse credibility findings as follows:

67 In respect of other findings against the applicant’s credibility it was said that the Tribunal did not put to the applicant the gravamen of its concerns. This was said to have been the case in relation to the following matters:

68 It was submitted for the applicant that in order to accord him procedural fairness the Tribunal was obliged to give him an opportunity to be heard on each of the matters referred to in the written submissions and set out above.

69 In my opinion, the Tribunal was not required to pre-test its conclusions on any of these matters with the applicant before finalising its reasons. Each were conclusions about and characterisations of the evidence put to the Tribunal by the applicant. They were conclusions and characterisations which the Tribunal was entitled to reach. The Tribunal questioned the applicant in a somewhat sceptical fashion on a number of matters in the course of the hearing. It gave the applicant the opportunity to make further written submissions to further bolster his case after the conclusion of the hearing. Even had it not done so, there would have been no failure of procedural fairness in this case. It is open to the Tribunal to reject or not be persuaded by an applicant’s evidence without specifically putting to the applicant that the evidence has not convinced or persuaded it. This is true of all the matters in respect of which complaint is now made.

70 In the circumstances, in my opinion, there was no failure of procedural fairness. The application will be dismissed with costs.

I certify that the preceding seventy one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Counsel for the Applicant:	Mr MD Howard appeared pro bono

Counsel for the Respondent:	Dr JT Schoombee

Solicitor for the Respondent:	Australian Government Solicitor

Date of Hearing:	3 December 2004

Date of Judgment:	8 March 2005

Federal Court of Australia

WABY v Refugee Review Tribunal [2005] FCA 209 (8 March 2005)