Appellant WADC of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 298 (1 October 2002)

Last Updated: 1 October 2002

FEDERAL COURT OF AUSTRALIA

Appellant WADC of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 298

MIGRATION - appeal - where no valid ground of appeal identified by appellant - whether error in Refugee Review Tribunal's reasons - whether unfairness in manner in which Refugee Review Tribunal conducted hearing by failing to call for certain evidence - whether error in primary judge's reasons - whether appellant given reasonable opportunity to put his case before primary judge.

Migration Act 1958 (Cth): s 476(1)

APPELLANT WADC of 2001 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

W 577 of 2001

BRANSON, GOLDBERG & ALLSOP JJ

1 OCTOBER 2002

SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 577 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WADC of 2001 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	BRANSON, GOLDBERG & ALLSOP JJ
DATE OF ORDER:	1 OCTOBER 2002
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The appellant pay the respondent's taxed costs of the appeal.

3. The respondent be granted liberty to apply within 7 days to vary the order for costs.

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 577 of 2001

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	APPELLANT WADC of 2001 Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent

JUDGE:	BRANSON, GOLDBERG & ALLSOP JJ
DATE:	1 OCTOBER 2002
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

THE COURT:

1 The appellant is a citizen of Iran who arrived in Australia without a visa on 12 October 2000. On 27 October 2000, the appellant lodged an application for a protection visa (Class XA) pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act") which was refused by the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") on 10 January 2001. On 15 January 2001 the appellant applied to the Refugee Review Tribunal ("the Tribunal") to review that decision. On 24 May 2001 the Tribunal, after conducting a hearing over two days, affirmed the decision of the delegate of the Minister to refuse to grant a protection visa to the appellant. The appellant applied to the Federal Court to review the decision of the Tribunal and on 30 November 2001 R D Nicholson J dismissed that application. The appellant now appeals from that decision to this Court.

2 The appellant, in his notice of appeal, set out the following ground of appeal:

"I am aggrieved by the Federal Court decision and the Federal Court decision must to set aside. And please take notice my complain as a error in case order."

This ground does not disclose any point of law raised for consideration or any ground in respect of which an error of law on the part of the primary judge is identified. Nevertheless, we have determined the appeal on the basis of considering whether the primary judge fell into error, irrespective of whether such error is raised by the notice of appeal.

3 The appellant is a Sunni Muslim of Arab ethnicity who said he came from Ahwaz in the south of Iran. The principal claims made by the appellant in support of his application for a protection visa are set out in the reasons for judgment of the primary judge. The appellant's claims and the evidence upon which those claims were based were considered by the Tribunal in considerable detail and it is not necessary to set them out again. It is sufficient, for the purposes of the appeal, to note the salient points of the appellant's claims which were dealt with by the Tribunal and formed the subject of consideration and determination by the primary judge.

4 The appellant's father was a well-known tribal leader of the Bani Turuf tribe and during the Iran-Iraq war the government was suspicious of the people who lived in Ahwaz which is in the Arab region of Iran. The appellant claimed that his father was arrested and held under house arrest from 1984 until 1986 and was forced to change his religion from that of a Wahabi Sunni to a Shi'ite.

5 The appellant claimed that he had been banned from leaving Khozistan from 1988 until 1990. In 1989 the appellant began studying medicine but in 1992 he was banned from the university and he completed military service between 1992 and 1994. He did not receive his military certificate of service until 1996. Without the certificate he could not obtain an identity card, work or get married. In 1997 he was accused of writing slogans opposing the current regime on walls and was detained for four months during which he was kept in solitary confinement. In 1998 he was sent into internal exile in Mako by the intelligence service. He was accused of belonging to Khalq-e-Arab, an organisation seeking independence for Khozistan.

6 The appellant said his half brother was involved in a university demonstration and the publication of a student newspaper at university. The appellant claimed that his half brother was arrested in 1999 and was falsely accused of murder. His half brother was sentenced to hang but the appellant and some friends and relatives were able to release him and help him escape by overpowering guards who were travelling with him on his way to the place of his execution. The appellant's version of the circumstances relating to his half brother varied on a number of occasions and was not accepted by the Tribunal. After this incident the appellant went into hiding before leaving Tehran on a genuine Iranian passport issued in Ahwaz.

7 In its reasons the Tribunal referred to country information available to it in relation to the human rights, political and religious situation in Iran. The Tribunal set out in considerable detail the claims and evidence given by the appellant at an interview conducted on his arrival in Australia, in written and oral evidence given to the Department, and in written and oral evidence given to the Tribunal.

8 In its findings the Tribunal accepted that the appellant and his family had faced problems in the 1980s. However, it found that the evidence which the appellant gave regarding the problems he himself faced more recently because of his ethnicity was unconvincing and out of keeping with other country information which it set out. The Tribunal made a number of findings that it did not accept the appellant's claims and it explained the reasons why it did not accept these claims. In particular, the Tribunal did not accept that the appellant was denied his military service card, expelled from university, detained in 1997 or sent into exile because he was an Arab or because he was suspected of involvement with Khalq-e-Arab. The Tribunal was not satisfied that the appellant would face serious harm amounting to persecution for reasons of race or political opinion because of his Arab ethnicity.

9 The Tribunal did not accept that the appellant's half brother was involved in student politics or the publication of a newspaper nor that he was arrested and falsely charged with murder because of his involvement in these activities. The Tribunal also rejected the appellant's claim that he was involved in organising his half brother's escape from detention and it considered that the appellant's evidence in this respect was far-fetched and implausible. The Tribunal was not satisfied that the appellant had a well-founded fear of persecution for reasons of political opinion, whether real or imputed, because of his half brother's political activities. The Tribunal finally rejected the appellant's claim that he would suffer persecution in Iran because he had applied for refugee status in Australia.

10 The Tribunal took into account evidence given for the appellant by two witnesses. The Tribunal considered that the evidence of one witness did not assist the appellant's application and it did not accept the evidence of the other witness.

11 The primary judge set out the appellant's principal claims and the Tribunal's principal findings. The primary judge noted that in his application for review of the Tribunal's decision the appellant had not specified any grounds of review. In the application the appellant stated that he was aggrieved by the Tribunal's decision because it did not believe his claims and the experience that he had and he specified as his ground of review that "the Tribunal decision must be set aside". As the primary judge pointed out, the appellant was unrepresented before him and had no legal training. At the hearing before the primary judge the appellant, in oral submissions, raised a number of matters in relation to the Tribunal's decision. These issues were set out by the primary judge.

12 The primary judge accepted the submission by the Minister that the matters raised by the appellant addressed factual matters going to the merits of the Tribunal's fact finding and that the appellant had sought to re-agitate before the court the facts found by the Tribunal. The primary judge stated, correctly, that the court did not have jurisdiction to re-make the findings of fact made by the Tribunal or to review them otherwise and by reference to an error of law falling within the scope of s 476(1) of the Act (as it applied prior to 2 October 2001).

13 The primary judge considered some of the specific issues raised by the appellant. He considered the claim that there had been actual bias in relation to the Tribunal's findings about the appellant's father after he had been in exile and what his father did, in particular in relation to changing his religion. The primary judge noted that in alleging bias the appellant was intending to convey the complaint that the Tribunal had a closed mind to believing the appellant's account of the salient features of his claim. The primary judge set out the Tribunal's reasoning on this issue and concluded that the Tribunal's reasons and findings provided "no foundation whatsoever" for any allegation of actual bias. We agree with his Honour's conclusion on this issue that there was no foundation whatsoever for any allegation of actual bias. His Honour did not fall into error in this respect. We add at this point that because of the allegations to which we refer shortly, we have, in fact, read the transcript and listened to the tape recordings of the hearing before the Tribunal. The hearing was conducted fairly and in a painstakingly careful fashion. The allegation of bias was groundless.

14 His Honour then considered the Tribunal's finding that the appellant's father had been arrested by mistake. He set out the Tribunal's reasoning on this issue and concluded, correctly, that the appellant's submission was a request for the court to reconsider the merits of the Tribunal's findings of fact which was not permissible. We agree with his Honour's reasoning on this issue. His Honour did not fall into error in this respect.

15 The primary judge rejected the appellant's complaint that the Tribunal could not refuse to conclude that he had experienced discrimination in his education and employment. The Tribunal made an explicit finding of fact that the appellant's claim in this respect was not plausible. As the primary judge correctly reasoned, that was a conclusion of fact which it was not open to the appellant to challenge in the court. His Honour did not fall into error in this respect and there is no ground made out for review of this issue by this Court.

16 The primary judge then considered the appellant's submissions in relation to the appellant's half brother. The appellant had submitted that he had offered to produce a videotape, photograph or any written document in relation to his half brother but the Tribunal said that it was not necessary. It was not apparent from the primary judge's reasons what was the nature and content of the videotape, photograph and documents to which the appellant had referred. The primary judge found that it would not have made any difference if the Tribunal had seen the material referred to because it had found, as a matter of fact, that the appellant's half brother was not involved in student politics, was not arrested and was not falsely charged with murder because of his activities. The primary judge found that this was a conclusion of fact open to the Tribunal. The primary judge made a finding that there was no credible evidence that the appellant had offered, or that the Tribunal had refused to accept, original documents and other evidence.

17 What the appellant sought to do before the primary judge and, subject to that which follows, what he sought to do before this Court on appeal, was to challenge the findings of fact of the Tribunal and invite the primary judge and this Court to make different findings of fact. As has been pointed out in numerous decisions of this Court, it is not open to the primary judge on an application pursuant to the provisions of Pt 8 of the Act to review a decision of the Tribunal on the facts, nor is it open to this Court, on appeal, to reconsider and determine for itself the facts as found by the Tribunal. It was for the Tribunal to decide relevant questions of fact. The role of the primary judge was to review the decision of the Tribunal and determine whether the Tribunal's reasons disclosed any ground for review identified by s 476 of the Act as it applied prior to 2 October 2001. The role of this Court on appeal is to determine whether the primary judge fell into legal error in the manner in which he reviewed the decision of the Tribunal.

18 Before us the appellant made some specific complaints about the conduct of the Tribunal and of the primary judge in connection with the hearings before the Tribunal and the court at first instance.

19 These allegations, which are dealt with below, were sufficiently serious to cause the Court to adjourn the hearing and make directions that the respondent file and serve an affidavit exhibiting the tapes and transcripts of the hearings before the Tribunal and the transcript of the hearing before the primary judge. Directions were made for the filing of any further evidence by the respondent, for the appellant to be provided with a copy of the tapes and transcripts, and for the appellant to place any further evidence before the Court as to the hearings before the Tribunal and the primary judge. The following exchange took place

"Branson J: Mr WADC, if you wish to place any evidence before the Court touching on the hearings before the Tribunal or the hearing before his Honour, you are at liberty to do so. What that means in practical terms for you is this: you may read the transcripts or have them read to you and hear the tapes and agree that they are entirely accurate. You might also think that the Court by reference to the tapes or the transcripts will know well enough what happened at the hearings, but if you consider that either the tape or the transcript are inaccurate or that, even though accurate, they don't give a true picture of what happened, then you might want to do something about that.

The course that is open for you to take is to swear an affidavit yourself of what you recall happened on those occasions. In addition you have mentioned to the Court that at least at one of the hearings, one of the hearings before the Tribunal, you had some companions with you. You could ask those persons, if you wished, to swear an affidavit of their recollection. Similarly on the other occasions, if you know of anyone who was present who could swear an affidavit as to their recollection, you could invite them to do so. If you do propose to put affidavit evidence before the Court you must have it sent to the Court and also sent to the Minister's solicitor. Do you understand what I have said, Mr WADC?

Interpreter: Yes

Branson J: Could you just tell me briefly what you have understood me to say?

Interpreter: I'm going to listen to the tape which will be provided by the Minister's lawyers. I'm going to listen to the tape. If I come to this conclusion that tape is correct or I was wrong I'm going to inform the Court and Minister's lawyer. If I realise that I was right, accordingly I'm going to inform the Court and Minister's lawyer.

Branson J: Right. Now, there will be tapes and transcripts of the Tribunal hearings but transcript only of the hearing in front of Nicholson J.

Interpreter: Yes.

Branson J: Will you be able to get the transcript, which will be in English, of the hearing before Nicholson J read to you or will you be able to read it?

Interpreter: I can read it myself.

Branson J: Very well. If you decide that you must do something to put evidence before the Court you understand that it must be in the form of a sworn affidavit?

Interpreter: How do I go about it for affidavit?

Branson J: Mr Ritter, what do you suggest?

Mr Ritter: I suggest that he make contact with the Court registry and the registry could explain the formal process.

Branson J: Mr WADC, if you have any difficulty formally swearing an affidavit there is an alternative course. That is to prepare a careful statement of what you want to say and bring it to Court - provide a copy of that statement to the Minister's solicitors and also bring it to Court with you.

Interpreter: Right.

Branson J: You would then be required by the Court to take an oath or an affirmation and swear to the truth of the statement.

Interpreter: I think this is a good version, your Honour.

Branson J: Very well. But if you can use the affidavit form, you could - you should - and if there are other witnesses you should also try to get their statements in affidavit form.

Interpreter: I try, your Honour.

Branson J: Very well. The parties will be told at some appropriate time when the hearing will resume. Yes, Mr Ritter?

Mr Ritter: Sorry, you Honour, just one point. You told the appellant that he should bring the unsworn statement to the Court. It may be of more assistance to the Court if he was to file it before just appearing at the Court with it. That would give the Court the opportunity to have a look at it before you resume.

Branson J: Thank you, Mr Ritter. If you don't provide an affidavit to the Court and to the respondent's solicitor but just a statement, not only should you give that statement to the respondent's solicitor as soon as you can, you should send it to the Court as soon as you can. So whether or not you use affidavits or statements they must be provided as soon as you can provide them, both to the respondent's solicitor and to the Court. There will be a direction, Mr WADC, that whatever you are going to do, if anything, about further evidence, it must be done within - whatever you are to do it must be done within 2 weeks of the time when the Minister gives you the affidavit with the tapes and the transcript. Only material which is provided within 2 weeks of that time will be considered by the Court. Is there anything further you wish to raise, Mr Ritter?

Mr Ritter: Only perhaps the possibility of the Minister being able to file affidavits in rebuttal of what may be said by the appellant in his affidavits. I have in mind, for example, if we were to file and serve the transcript and the tapes and there is then an allegation that somehow the tapes have been interfered with, then we may want to file in evidence in rebuttal as to what happens to the tapes, but it would be inappropriate to just file that in anticipation that something might be said.

Branson J: Yes. I think that's fair, yes. The respondent will have liberty if so advised to file answering material in response to any material filed by Mr WADC. I don't propose to put a time limit on that, Mr Ritter, but it should be done as quickly as possible."

20 After the hearing the timetable for the filing of evidence was varied to require the parties to do the following:

a) The Court required the respondent to file an affidavit which exhibited the tapes and the transcripts of the hearing before the Tribunal and the transcript of the hearing before the primary judge on or before Friday 26 July 2002.

b) If the appellant wished to file any evidence (by affidavit or unsworn statement) touching upon the hearing before the Tribunal and the primary judge, he should file that evidence by Friday 9 August 2002.

c) The respondent was to file any material in reply to the appellant's material on or before Wednesday 14 August 2002.

21 On 26 July 2002 the solicitor for the respondent filed an affidavit exhibiting transcripts and cassette tape recordings of the hearings before the Tribunal and the primary judge. Copies were provided to the appellant.

22 No evidence was filed by the appellant by 9 August 2002. On 22 August 2002 the Court wrote to both parties indicating that unless the Court heard from either party by 6 September 2002 it would assume that neither party wished to file any further evidence on submissions and the Court would deal with the matter thereafter. There was no further communication from either party.

23 The first matter raised by the appellant prior to the adjournment was that the Tribunal incorrectly stated the nature of the evidence of one of the witnesses called by the appellant. The passage in the reasons of the Tribunal to which the appellant made reference was as follows:

"Mr [X's] evidence was also at odds with the evidence given [by] Mr [WADC]. He said that [WADC's half brother] was arrested at the time the Sebah office was raided and closed, but that the details of his arrest were secret. Mr [WADC] said that his brother was arrested while leading a large student demonstration and that the Sebah office was raided about a month later. As discussed above, I do not believe that [WADC's half brother] was involved in student politics or in the publication of Sebah, nor that he was arrested because of this. I do not believe Mr [X's] evidence to the contrary."

24 The Court has examined the transcript and listened to the tape of this witness' evidence. The transcript of the relevant parts of the hearing is slightly inaccurate. Corrected by reference to the tape, the following evidence was given to the Tribunal by the witness in question:

"Ms Smidt: Well, actually, what I prefer - I will - but do you - can you tell me anything about the arrest of Mr [WADC's] brother or the charges that he faced?

Interpreter: I only know that in early '78, year '78, his office was closed by the intelligence security forces and it has been a tradition for the Islamic Republic these days that whichever [journalist wants] to speak positively they show their opposition to us in by violence and the rest of this matter was kept secret and no local newspaper published any further information in that regards. I only understood that he was arrested and there was no knowledge about his well-being, no news about him.

Ms Smidt: Okay. Now from what Mr [WADC] told me, this newspaper was a legal newspaper that was circulating amongst students and others for a reasonable period of time without having major problems. Is that your - is that correct? I think if - just.

Interpreter: In regards to this weekly newspaper, which was called [Saba], he had - he was permitted to work legally and as far as I know this newspaper wrote a lot of articles in regards to countries problems and I would like to mention that when the office of this newspaper was raided and was closed, up to that point they were licensed legally to operate. They were permitted but because of writing this article, publishing this article in regards to opposition to the political movement of the country, this office was closed and I do not have any other.

Ms Smidt: Do you if - do you know if Mr [WADC's] brother was arrested before or after the office was closed?

Interpreter: When they closed the office at the same time he was arrested.

Ms Smidt: So was he arrested at his office?

Interpreter: I don't have enough information in this regard. All I know is at the time he was arrested it was coincidental with the problems at the university dormitory which was beginning of '78 and they did not give the details of place or the situation of his arrest. They only published the news that the leader of these [quaere anarchist] people have been arrested and they didn't give any further information in that regards."

25 It is not the task of this Court to parse and analyse each factual finding of the Tribunal. It suffices to say that this passage ([24] above) gave a factual foundation for the passage in the Tribunal's reasons referred to in [23] above.

26 The further allegations of the appellant were more serious. The allegations about the Tribunal were several, but they contained one theme: that the appellant had sought to bring forward extrinsic material of expressed importance and the Tribunal had said that it either did not want, or did not need, to look at such material.

27 The first specific allegation by the appellant was that he informed the Tribunal that he could provide "video tapes, other tapes, witnesses" to verify that his brother was arrested in a demonstration in the university and that this was well known. The appellant elaborated:

"Interpreter: The incident that my brother was arrested. In that incident part of the university of Shahid Shamron in Ahvaz was set alight as well. Apart from this film I informed the Tribunal that there are lots of other evidence I have that prove the reason I had to flee Iran and I also informed the Tribunal that I have a witness who is one of the hierarchies from Iran. He is presently residing in USA. He fled Iran, went there and he can verify my situation."

28 The appellant was questioned by the Court about this. He was asked what the nature of the other material was apart from the video. The following exchange took place:

"Branson J: What was the nature of the other material apart from the video?

Interpreter: I had some interview with foreign publications and also some documents showed that because I had anti-government activities I was in the eyes of the authorities I was somebody against them.

Branson J: Mr WADC, it's important that you be more detailed in response to questions. You speak of an interview with a foreign publication. Do you mean that you had a cutting from a newspaper?

Interpreter: Whilst I was in the midst of my activities, political activities, I used to write a letter to the editor of the foreign publications and ask the editor to publish my letter and also we had publication inside Iran called Saba which this publication used to give some newsletters or monthly publication.

Branson J: Did you have in Iran copies of the foreign papers in which your letters had been published?

Interpreter: Well, I've got it, some here, some in Iran.

Branson J: As to the ones here, why did you not give them to the Tribunal?

Interpreter: Didn't ask. The member said no need. In fact, is the member's voice said to me that, `No need.'

...

Branson J: Did you have the letters with you at the first interview when you were in the same room as the member?

Interpreter: Yes, your Honour.

Branson J: Did you offer to give them to the Tribunal member?

Interpreter: Well, I said, `yes, this is some documents I have,' offered it to the RRT member. Said, `Not interested' - `No need, no.' And I had two witnesses with me there, your Honour, apart from that all this being taped, two witnesses, my witness again for this.

Branson J: These are two witnesses who gave evidence or two additional witnesses?

Interpreter: I had two witnesses plus two people that were with me, support.

...

Interpreter: I had two witnesses, your Honour - they were outside of the room - and two people were with me all the time, yes.

Branson J: Those two who were with you all the time, they were not intended to be witnesses?

Interpreter: No.

Branson J: Thank you.

Interpreter: But at the same token they became a witness of when I offered RRT member my documents and member said: `Not interested.' They witnessed this.

Goldberg J: Can I ask you about the videotape?

Interpreter: Yes, your Honour.

Goldberg J: What does the videotape show?

Interpreter: I started the tape by introducing the demonstrations, where, when and the time that it is starting and why is it starting. I am speaking about the demonstrations, so everything about the demonstration is being taped, the slogans the demonstrators shouting and the clash they have with the authorities and few of them get beaten up, arrested few, everything is on the tape. After the arrest of my brother, where we were printing the monthly papers, it was closed down by the authorities. The reason they did that - some of these films was made regarding the demonstrations in Iran in Ahvaz, south, was being sent to countries like Iraq, Kuwait, Saudi Arabia, and the authorities got to find out about the fact that other countries are realising what is happening inside Iran.

Branson J: Mr WADC, before you go on, his Honour's question was directed to the content of the tape. Could you tell us whether your brother appears anywhere on the tape?

Interpreter: Yes, he is.

Branson J: Is his arrest shown on the tape?

Interpreter: Yes, when - because they use the baton and they started hitting the demonstrators at the same time my brother was arrested, not him - only him - others as well is on the tape.

Branson J: Did you tell the Tribunal that the arrest of your brother was shown on a videotape that you could get?

Interpreter: Yes, I did. I in fact informed member that I was videoing the close-up of this incident as well. Very sensitive part.

Allsop J: So that I'm clear, did you offer - did you say to the Tribunal member that this tape could be brought from Iran?

Interpreter: I did, your Honour.

Allsop J: What do you say the Tribunal said?

Interpreter: `There's no need.' Is not only one videotape, your Honour, is a series of events is being taped by myself, videoed, and I have archive holding all these tapes back home in Iran.

Branson J: What do the other tapes show?

Interpreter: Every time a group got together and wanted to show their dissatisfaction towards the regime and if they were not happy for any matters, I videoed these incidents.

Branson J: Why did you do that, Mr WADC?

Interpreter: I just wanted to have archive.

Branson J: I ask only because it seems a dangerous thing to have such a record.

Interpreter: Well, I was pretty certain that is going to be safe, all this is going to be kept somewhere that no-one can get hold of.

Goldberg J: Did the authorities who were at the demonstration when you say your brother [name] was arrested - were they able to see you using your video camera?

Interpreter: Yes. Your Honour, I wasn't the only one who was taping the incident. There were others who were taping."

[emphasis added]

29 The next complaint concerned newspapers which the appellant said he had in his possession which showed his half brother's political activity. The following exchange illuminates the complaint:

"Interpreter: I'm a bit confused, your Honour. RRT says that, `I do not believe that Mr WADC with his brother was organising this weekly publication and also I do not believe that because of organising this weekly would be of any interest to the authorities.' I had four of the latest publication of this weekly with me which I was going to offer to her to have a look at it. The member wasn't interested. For proving of this point I have an Internet address that I can provide. Didn't even ask me to prove it.

Branson J: Mr WADC, I want to understand what you're saying. Did you have in your possession before the Tribunal member four copies of the newspaper?

Interpreter: I had four of this weekly publication.

Branson J: The actual newspaper, not an Internet print?

Interpreter: No, the actual newspaper.

Branson J: Did you offer them to the Tribunal member?

Interpreter: I did.

Branson J: What did the Tribunal member say?

Interpreter: `There's no need.'

...

Interpreter: It was quite unusual, your Honour, that somebody who is deciding about me is not interested to see any evidence that I'm providing.

Branson J: What would the Tribunal member have seen if the newspapers had been handed up to the Tribunal member?

Interpreter: Everything about this publication, your Honour, the address, the name, the editor, the time, how many has been published so far; everything about this.

Branson J: What would it have shown about your brother's connection with the newspaper?

Interpreter: The fact that he is editor.

Branson J: His name appeared as the editor?

Interpreter: Correct.

Branson J: You mentioned a moment ago the Internet. Did you tell the Tribunal member anything about the Internet in this connection?

Interpreter: I said to the member that there is Internet address as well.

Branson J: For this newspaper?

Interpreter: Correct. Is actually weekly. Is called a weekly.

Branson J: It's a weekly.

Goldberg J: What was the name of it?

Interpreter: Saba, S-a-b-a.

...

Branson J: Did the Tribunal member say anything when you mentioned the Internet site?

Interpreter: No, because she didn't appear to be interested. Even with my case officer, your Honour, I inform my case officer, `There is an Internet address if you like to get more information,' but no interest."

30 The Tribunal made the following findings relevant to these allegations:

"I do not accept that Mr [WADC's] half brother [name supplied] was involved in student politics or the publication of a newspaper, nor that he [was] arrested and falsely changed [sic] with murder because of his involvement in these activities. These claims were not mentioned when Mr [WADC] was interviewed on 22 October 2000. At that time he said that [Mr WADC's half brother] had been arrested and charged with murder in 1999 after being involved in tribal clashes in which someone was killed. I do not believe that Mr [WADC] would have made this claim if [Mr WADC's half brother] had been arrested and charged with murder because of his involvement in student politics. Mr [WADC] claims that he gave incorrect information when he first arrived because he was afraid that the Iranian security services might be advised of the contents of his application. I do not believe this. It is not plausible that Mr [WADC] would have come all the way to Australia to seek refuge if he feared he might be handed over to the Iranian authorities. Furthermore, as noted above, Mr [WADC] was advised that information which he provided during his first interview would not be passed to anyone but Australia [sic] Government officials.

As I do not accept that [Mr WADC's half brother] was involved in student politics or in the publication of a student newspaper, it follows that I do not accept that Mr [WADC] had any association with a newspaper produced by his brother, nor that he was of interest to the authorities because of his association with the newspaper, nor that he was forced to live in hiding prior to coming to Australia for this reason."

31 We have examined the transcript and the tape recording of the hearing before the Tribunal which took place over two days. By way of preliminary comment it can be said that the Tribunal went over all the appellant's evidence and claims painstakingly. Often, during the course of a long interview, difficulties with the claims were pointed out to the appellant, explanations were sought and opportunities were given to the appellant to say whatever he thought appropriate. Further, the appellant could have been under little misapprehension by the end of the hearing that the Tribunal had real doubts about the veracity of the appellant's claims. There was ample opportunity for him to emphasise and bring forward everything which bolstered his claims.

32 The transcript is somewhat deficient. At p 36 of the transcript of the hearing on 1 March 2001 there is a non-transcription because "sound fades unable to decipher". The exchanges on the tape at this point are in fact audible. There was no offering of any material to the Tribunal during the period of the hearing represented by this gap in the transcript. Similarly at p 2 of the transcript of the hearing on 20 March 2001 there is a gap in transcription. At this point on the tape the speed was variable. Though the sound is not entirely easy to decipher, there does not appear to be any exchange at this point of the kind referred to in [28] and [29] above.

33 There is one exchange that bears a resemblance to what the appellant said happened. At pp 3-4 of the transcript of 20 March 2001, the Tribunal was dealing with the appellant's half brother's alleged involvement in the student demonstration of 1999. The following exchange took place:

"Ms Smidt: Right. And last time you said that somewhere between 150 and 200 people were detained during the demonstrations that your brother led in 1999. Do you know what has happened to those people? I mean, not all individually but are they mostly still in detention, have they been released? Do you know what has happened to them?

Interpreter: They had these couple of cases that I have heard about. I can't remember and apparently they were in prison, they were sentenced to imprisonment.

Ms Smidt: All of them, because it is my understanding from what I've read about other students who were detained around this time, that that was not the same as most? Most were released.

Interpreter: Yes, some of them were released, that's correct.

Ms Smidt: You don't have any idea of what proportion were released or anything more specific than that?

Interpreter: I couldn't have had that possibly because of fear for my life I had escaped. And specially I felt danger because the scenes had been filmed. And I have kept them, all these things myself because I was myself filming.

Ms Smidt: Yes I understand from what you said though, you were not involved in this demonstration.

Interpreter: Not directly, no.

Ms Smidt: How were you involved indirectly?

Interpreter: I was filming this process and from distance I was filming this event.

Ms Smidt: But what did you do with the films that you took?

Interpreter: I have kept them in safe place.

Ms Smidt: What did you ---

Interpreter: If you really need, I could ask from John and it was possible I could show them to you.

Ms Smidt: No, that's not going to be necessary, I don't think. Okay, now you - you have made - given information before about your brother's escape from jail. Now I understand that he was being held in a prison called Schoosta Prison or Schoostat Prison.

Interpreter: It's a city which is 180 kilometres from Arkvas and it's called Shooshtar."

[emphasis added]

34 The appellant did offer the tape but not in such a manner as to indicate that he considered it to be of any great significance, and he did not press his offer. The offer contained none of the detailed information which the appellant recounted to us (at [28] above). Contrary to what the appellant told us, he told the Tribunal that he had been filming from a distance. There was no unfairness at all in the Tribunal failing to ask the appellant to bring the videotape from "the safe place" (where ever that might be). If the appellant did not emphasise the matter as important, the Tribunal can hardly be criticised for not stopping the hearing and requiring a videotape to be produced the contents of which were not disclosed, save that it had been filmed "at a distance".

35 Neither the transcript nor the tape recording reveals that the appellant offered the Tribunal any publications or newspapers or other material referred to at [28] or [29] above. We do not accept that this occurred.

36 There were at least two occasions when the Tribunal did tell the appellant that it did not need further information from him. At pp 3 and 15 of the transcript of the hearing on 20 March 2001 the Tribunal told the appellant that it needed no convincing that people are sentenced to death and executed in Iran and that there are human rights abuses in Iran. No unfairness was caused by this approach.

37 At the hearing before the primary judge the appellant, overstating what he had said to the Tribunal, said the following in connection with the findings about his half brother:

"Interpreter: Your Honour. In regard to my step-brother and his job as the editor in the weekly paper, Subor [sic], and the moment he was arrested by the intelligent army [sic]. I have told the Tribunal that to prove this matter, whatever document is required, for example, a video tape or any written document, I will take the risk and provide it for them. And I will ask people to take it out of a hidden place in Iran and offer it to them, present it to them, to prove my case. Even I said it to case officer as well as Tribunal. A very strong witness called [name supplied], second child of [name supplied] ---"

38 The following exchange also took place:

"Interpreter: ... And I have provided many articles to foreign newspapers. So, how come Tribunal didn't accept all this? And even to prove the facts they didn't request for this document. Don't do you think this is a bias in this case?

RD Nicholson J: Can I ask him, is he saying that the fact which the Tribunal found did not have any evidence to support it because this document was not requested?

Interpreter: Tribunal - asking that why Tribunal didn't ask me to provide those documents.

RD Nicholson J: I understand that. But I have a question for him which I want him to think about. Is he saying that because the Tribunal did not request this document, the Tribunal made some conclusion that he could point to in the written reasons that it had no evidence to make? Is that what he is saying?

Interpreter: I believe that is correct.

RD Nicholson J: Well, what finding is it that he says there was no evidence for? What conclusion?

Interpreter: Yeah. Whatever document I have, Tribunal didn't ask me to provide them.

RD Nicholson J: Okay. Did that mean that when they made the conclusion about the half-brother, the step brother, that he says they didn't have any evidence?

Interpreter: That is correct.

RD Nicholson J: Is he saying they didn't have any evidence or that they had some evidence but not enough?

Interpreter: They didn't want any documents from me.

RD Nicholson J: About the step-brother?

Interpreter: Yes. But my brother, step-brother, and myself.

RD Nicholson J: All right.

Interpreter: I have with me one of the article that I have sent to one of the foreign newspaper a few years ago.

RD Nicholson J: Did the Tribunal have this before it?

Interpreter: No, they didn't. They gave me negative response.

RD Nicholson J: Right.

Interpreter: Can I tell you something, your Honour?

RD Nicholson J: Yes.

Interpreter: Begin. During the Tribunal I have told the lady judge that if she needs any proof for what I am saying, I am willing to provide her with photos, written materials and video tape. I can ask my family to send it from Iran. I like to know if they have believed me or not. And they told me, `No, there is no need for that.'"

39 What the appellant told the primary judge here did not accurately reflect what had occurred at the Tribunal. Nor did it reflect the detail of what he said to us.

40 The appellant's claims before us are not borne out by an examination of what occurred at the Tribunal. The fact is, unpalatable though it may be to the appellant, the Tribunal, after a long hearing involving detailed questioning of the appellant, disbelieved him. The Tribunal had the advantage of seeing the appellant and forming views about him. Having listened to the tape recording and having read the transcript of the hearing, we do not think that there was any unfairness whatsoever in the conduct of the Tribunal.

41 The appellant before us then proceeded to complain about the conduct of the primary judge. This arose in the context of the presiding judge asking the appellant how much of what he had told the Court on appeal was recounted to the primary judge. The following exchange took place:

"Branson J: Thank you. Mr WADC, when you started talking to us you said there were matters you couldn't tell the primary - Nicholson J.

Interpreter: About my witnesses that I explain?

Branson J: I want to know what of the things you've told us you say you were prevented from telling Nicholson J?

Interpreter: Sorry, your Honour?

Branson J: I want to know how much of what you've told us today you say you could not tell Nicholson J.

Interpreter: About the half?

Goldberg J: About the?

Branson J: About the half, yes.

Interpreter: Half. Half. 50 per cent.

Branson J: Tell us the topics you couldn't tell Nicholson J. Tell us the topics, just a heading for the topics?

Interpreter: About the witnesses and about the documents that I have and also some question, your Honour, you ask me and I explain in details, of course. It didn't happen there.

Branson J: But to understand clearly, you wanted - you came before Nicholson J wanting to tell him about the witnesses and the documents and you say he didn't let you. Is that right?

Interpreter: Yes, in fact judge left the courtroom.

Goldberg J: I'm sorry?

Interpreter: The judge left the courtroom. Not only he wasn't interested to listen to me, the judge left the courtroom.

Goldberg J: But at what point of time did the judge leave the courtroom?

Interpreter: When the judge finished speaking to the respondent's lawyer, couple of minutes later he left the courtroom. I actually asked the interpreter where the judge gone. I thought he is probably going to the gents, so we didn't know what had happened.

Goldberg J: When the case started did the judge ask you to tell your story first before the lawyer for the Minister?

Interpreter: Yes, your Honour.

Goldberg J: And did you tell the judge your story?

Interpreter? Yes, I did. I was explaining everything and the judge was taking notes.

Goldberg J: How long did that take for you to tell your story, roughly?

Interpreter: An hour, bit more, I think. In between, sometimes respondent's lawyer was talking as well.

Branson J: You said that you didn't have a chance to say about the witnesses and the documents. Why do you say you didn't have a chance to say?

Interpreter: Because there was lots of things to talk about. I was talking about some points and I had to explain sometimes. That's why it took long. Your Honour, we've got to remember that I am not a lawyer. I do not know anything about the law, so I talk the way I think is correct. In order to prove some points that I believe in I have to explain, otherwise how else I'm going to make things clear?

Branson J: Did you prepare some notes when you went before Nicholson J like you've done today?

Interpreter: Yes, your Honour.

Branson J: And did you go through all your notes and tell Nicholson J the things in your notes?

Interpreter: No, three pages I didn't get a chance to talk about.

Branson J: What happened that you didn't get the chance to talk about them?

Interpreter: When I spoke for a while and then the judge was talking to Minister's lawyer and then when they finished talking, a couple of seconds silence and I was waiting for judge to tell me, `Okay, continue' but the judge left the courtroom.

Branson J: I'm having difficulty understanding this, Mr WADC, so that's why I'm asking you more questions, to make sure that I understand what you're saying.

Interpreter: You see, like today, your Honour, you just said to me, `Do you have anything else to say?' and I said, `No, no more,' because today I went through all my notes in front of me and then I came to the end of my notes and then I informed the Court that I do not have any more to say.

Branson J: Just answer these questions, Mr WADC, would you? Usually in a case of this kind with a single judge the person in your position speaks, then the Minister's representative speaks. Did that happen with Nicholson J?

Interpreter: Yes.

Branson J: So you had your notes when you were speaking and you went through your notes?

Interpreter: In one point that I was still explaining my case the judge started talking to Minister's lawyer and Minister's lawyer was looking at his law book and they were discussing something about the law, and then that was the end of it; never came back to me again for me to continue the rest of my case."

[emphasis added]

42 In fact, on perusal of the transcript and upon hearing the tape recording of the hearing before the primary judge, the primary judge first heard the appellant, then the counsel for the respondent and then called on the appellant in reply. The following was said:

"RD Nicholson J: Yes, thank you. Does the applicant wish to say anything by way of reply to any matters raised by Mr Ritter? Being matters he has not already addressed.

Interpreter: Your Honour, can I respond to ---

RD Nicholson J: That is what I have just invited him to do.

Interpreter: I would like to ask you why you keep a tape and why do you record the interviews.

RD Nicholson J: No, no. Mr Ritter was referring to the tape at the hearing before the Tribunal.

Interpreter: I mean the Tribunal tape. I mean the Tribunal tape.

RD Nicholson J: Well, the Tribunal, by law, has to keep a record of its proceedings, just as this Court keeps a record of its proceedings.

Interpreter: Yeah. I have had another witness with me in the name of [name supplied]. And he was with me for 8 hours during two sessions. I have insisted that I have plenty of documents, witnesses, tapes, photos, that will prove my case.

RD Nicholson J: Yes, I have already heard him say that. But Mr Ritter has responded that there is no legal significance, even if that was the case, and I have to consider that argument.

Interpreter: Yeah. No, thank you, I don't have anything to say.

RD Nicholson J: Thank you.

Interpreter: He is a lawyer and I am a layman.

RD Nicholson J: Well, I did say to him at the beginning and I will ask you to repeat this now. The Parliament of Australia has determined what this Court can do in reviewing a decision of a Tribunal.

Interpreter: Yeah."

[emphasis added]

43 There is and was no foundation whatsoever for any criticism of the hearing before the primary judge.

44 The allegations made from the bar table at this hearing caused the Court to require the respondent to lay out in transcript and tape form the evidence and proceedings before the Tribunal and the primary judge. The Court was obliged to spend considerable time listening to two hearings and reading the transcripts of those hearings. There was no legitimate foundation for any of the complaints which were, to put it charitably, exaggerated. The making of the allegations has delayed the disposition of this matter from the second week of May to today. The appellant is in detention. The delay in the disposition of his case has been caused by his conduct.

45 There has been no basis shown for interfering with the orders of the primary judge. Because of the unwarranted nature of the allegations and of the cost to which the respondent has been put since 9 May, the orders which we make allow for the respondent, if he so desires, to apply for a special order as to costs in respect of the period after 9 May 2002.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Branson, Goldberg & Allsop.

Associate:

Dated: 1 October 2002

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	M J Ritter
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 May 2002
Date of Judgment:	1 October 2002