S1693 of 2003 v Refugee Review Tribunal [2005] FCAFC 151 (8 August 2005)

Last Updated: 8 August 2005

FEDERAL COURT OF AUSTRALIA

S1693 of 2003 v Refugee Review Tribunal [2005] FCAFC 151

MIGRATION – judicial review – refusal of protection visa – whether breach of procedural fairness – documents not forwarded to Refugee Review Tribunal – adverse findings as to credibility by Refugee Review Tribunal – whether the trial judge ought to have considered whether a misapprehension that documents were before the Refugee Review Tribunal affected the demeanour of witnesses – credibility findings by Refugee Review Tribunal not based on demeanour of witnesses – appeal dismissed.


Migration Act 1958 (Cth)

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30 cited




















APPLICANT S1693 OF 2003 v REFUGEE REVIEW TRIBUNAL and MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and COMMONWEALTH OF AUSTRALIA
WAD 274 OF 2004





MARSHALL, MANSFIELD & SIOPIS JJ
8 AUGUST 2005
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 274 OF 2004

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

BETWEEN:	APPLICANT S1693 OF 2003 APPELLANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT
JUDGES:	MARSHALL, MANSFIELD & SIOPIS JJ
DATE OF ORDER:	8 AUGUST 2005
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the respondents’ 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	WAD 274 OF 2004

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

BETWEEN:	APPLICANT S1693 OF 2003 APPELLANT
AND:	REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT COMMONWEALTH OF AUSTRALIA THIRD RESPONDENT

JUDGES:	MARSHALL, MANSFIELD & SIOPIS JJ
DATE:	8 AUGUST 2005
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT

1 This is an appeal from a judgment of a judge of this Court published on 23 November 2004 dismissing the appellant’s application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’). The application was founded on allegations that the Tribunal had failed to accord the appellant procedural fairness. In his reasons for judgment, the primary judge said that he was not satisfied that there was any practical unfairness which affected the Tribunal’s decision and he dismissed the application.

2 For the reasons which follow we are of the view that the appeal should be dismissed.

Background

3 The appellant is a citizen of Iran. His brother has lived in Australia since 1974. The appellant applied for a visa to migrate to Australia in 1990 but was unsuccessful.

4 In July and August 1994 the appellant applied under his brother’s sponsorship for a visitor’s visa to come to Australia. That application was unsuccessful. The appellant’s brother applied to the Immigration Review Tribunal (‘IRT’) for a review of the refusal and that review was successful. Accordingly, the appellant was granted a visitor’s visa in April 1995. He came to Australia on the visitor’s visa on 11 June 1995.

5 Some six weeks after arriving in Australia, on 24 July 1995, the appellant lodged an application with the Department of Immigration and Ethnic Affairs (‘the Department’) for a protection visa. The appellant’s brother assisted the appellant with the application for the protection visa. The claims the appellant advanced in his application and in the course of an interview with a delegate of the Minister were in substance:

• He had been in hiding for 5 years after leaving high school in 1980 in order to avoid compulsory military service.
• In 1998 he was apprehended by revolutionary guards for wearing a short-sleeved shirt and forced to complete 27 months of military service.
• In 1992 he was found reading a Mujaheddin newspaper which he had picked up in a park. He was given 40 lashes and detained for 2 days.
• From 1992 his house was kept under observation by revolutionary guards and he was unable to get a government job.
• His fiancée’s parents told him that their daughter would marry someone else because of the trouble he was having.
• If the appellant were to return to Iran he would be arrested and imprisoned. He had been warned by a ‘Kommittee’ member not to leave the country. If he returned he would be treated as a courier for the Mujaheddin or it would be thought he went overseas to contact them.
• It took the appellant a year to get a passport which he obtained only because he knew someone to whom he could pay a bribe.

6 The application for the protection visa was refused by the delegate of the Minister on 31 October 1995. An examination of the decision record of the delegate shows that the delegate had before him the Department’s files that related to the appellant’s attempt to obtain a visitor’s visa to enter Australia. He also had before him a copy of the IRT decision of 29 March 1995 referred to above.

7 The delegate refused to grant the protection visa on the basis that the delegate did not find the appellant’s case credible. In his reasons for decision, the delegate pointed to inconsistencies between the appellant’s case made in support of the application for the protection visa and the case made on his behalf before the IRT in relation to his application for a visitor’s visa granted to him in April 1995. The delegate also found that there were implausible elements in the appellant’s claims in support of his application for a protection visa.

8 In his decision the delegate referred to various reports on country information that he had before him in making the decision. These reports included an Amnesty International Report, Department of Foreign Affairs and Trade cables and a report from the Immigration and Refugee Board, Ottawa.

The application before the Tribunal and the aftermath

9 On 23 November 1995 the appellant applied to the Tribunal for review of the delegate’s decision. On 11 June 1996 the Tribunal held a hearing at which the applicant and his brother gave evidence.

10 On 21 June 1996 the Tribunal dismissed the appellant’s application and affirmed the decision of the delegate. At p10 of its reasons for decision the Tribunal says:

‘There are a number of serious credibility problems with the present application. In fact, the application may be decided on the basis of credibility.‘

11 The Tribunal identified a number of reasons for coming to an adverse view on the appellant’s credibility. These included the following:

• The appellant had shown himself as ready to deceive Australian immigration authorities and the IRT in relation to his reasons for travelling to Australia in 1995. Whilst this could not legitimately count against him if he was genuinely concerned for his safety in leaving Iran, his actions had to be seen in the context of his other credibility problems with his case.
• Despite claiming that he was in hiding from 1982 to 1987 other information supplied by the appellant (as part of his previous visa application) showed that he was working for the same employer, namely his cousin’s accounting firm, from 1982 until he left Iran and that he had also lived at the same address during this time. This other information undermined the claim that he had been in hiding. Secondly, if as the appellant claimed he had a pro Mujaheddin profile, it was impossible to see how he could have remained free from official detection given the long period of time he lived and worked at the same address.
• The appellant claimed that he would face unemployment if he returned to Iran because his cousin’s business, in which he had been employed, had closed down 2 weeks before he came to Australia. However, the appellant had claimed before the IRT that he was in stable continuing employment in his cousin’s business and that the business had been established for some 13 years. The emphasis on the stability of the employment was a significant factor in the IRT’s decision to grant him a visitor’s visa. The Tribunal found the timing of this alleged closure of his cousin’s business to be ‘most implausible’.
• Given the appellant’s claim that his house was watched and that he was often followed when he left the house, the Tribunal was unable to see how it was possible for him to leave the country without coming to the attention of the authorities, if he was, as he claimed, a person who was wanted for Mujaheddin sympathies.
• Although it was not impossible that the appellant could have departed Iran using bribery to facilitate that process, his ability to depart Iran did count against him to a very significant extent. This was because, if he was of interest to the authorities for as long as he claimed, there would have been plenty of time for the authorities to add his name to a blacklist which would have made an easy departure extremely unlikely.
• It was very difficult to see how a person wanted by authorities as the appellant claimed to be, could have obtained a certificate of school completion issued in April 1995 and would have chosen to have it translated the next day by an official of the Ministry of Justice.
• Before the IRT the appellant’s brother had asserted that their mother had been advised that she would be eligible to migrate to Australia in a preferential family category but had chosen to remain in Iran ‘where she has family and friends and enjoys a comfortable lifestyle’. Also the appellant’s brother before the IRT said that two of his brothers then living in Australia, now wished to return to Iran because they had been unable to find employment in the areas in which they had qualifications. The Tribunal was unable to accept that the appellant’s mother and brothers would want to remain in or return to Iran if the appellant was a Mujaheddin supporter, because this would have put their own safety at risk. Indeed, it was part of the appellant’s case before the Tribunal that his mother had been seriously harassed and put at risk because of his Mujaheddin connections.

12 There is no reference in the Tribunal’s reasons for decision to any adverse finding on credibility being based on the demeanour of the appellant or any of the witnesses.

13 By an application lodged on 19 July 1996 the appellant applied to the Federal Court for a review of the Tribunal’s decision. Carr J dismissed that application on 23 April 1997.

14 The appellant was then joined as a member of the class of applicants represented by Mrs Lie in representative proceedings commenced in the High Court of Australia in the matters Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal (2002) 190 ALR 601; [2002] HCA 30 (Muin and Lie). The High Court gave judgment on the Muin and Lie applications on 8 August 2002. Those applications succeeded on procedural fairness grounds. Gaudron J granted leave to the appellant and other persons who were members of the class represented by Mrs Lie to file applications for orders nisi. The appellant filed such an application on 29 May 2003. That application was transferred on 2 March 2004 to the Western Australia District Registry of the Federal Court on remittal from the High Court. The primary judge heard that application and this appeal is brought in respect of his decision in that application.

The application for review before the primary judge

15 Before the primary judge, the appellant alleged that he had not been accorded procedural fairness. The main ground relied on by the appellant was that, contrary to advice received from the Tribunal, all the material which had been before the delegate was not forwarded to the Tribunal, and that, acting on the basis of that erroneous belief, the appellant did not forward further documentation to the Tribunal, nor make the oral submissions, which he would otherwise have done. The appellant also claimed that he was not given a fair opportunity to comment on the matters that the Tribunal took into account arising from his application for a visitor’s visa and the hearing before the IRT.

16 There were two categories of documents which the appellant said he and his brother erroneously believed were before the Tribunal. The first category comprised a number of documents that the appellant’s brother had forwarded to the Department which his brother regarded as being favourable to the appellant’s case. The second category comprised the reports containing country information.

17 In the application for judicial review before the primary judge, the appellant relied upon an affidavit from his brother. The relevant paragraphs of the affidavit said:

‘5 To the best of my recollection, about 3 weeks after the Protection Visa application was lodged, I provided the Department with documents to show that a person whose case was similar to [S1693’s] and who was returned to Iran disappeared after returning to Iran and his family never saw him again. I also provided documents showing what happened to Mujaheddin supporters on their return to Iran and that they are labeled [sic] as anti-Islamic. These documents were in the form of newspaper clippings and sheets of information. For example, the newspaper clippings included clippings from the official Mujaheddin newspaper. The Mujahed (that I had obtained from friends in Sydney) and also other clippings handed to me by members of the Iranian community in Perth. I also handed in sheets of information I gathered from the Iranian community.

6 Whilst I cannot remember precisely what appeared in the clippings and information sheets, I do recall that I was of the opinion that such information was favourable to [S1693’s] application for a protection visa in showing that he had a real chance of being persecuted if he returned to Iran.’

18 The appellant’s brother also deposed that he had seen letters from the Tribunal which led him to believe that the documents that he had submitted to the Department were going to be given to the Tribunal and that the Tribunal would look at those documents once they were received. He also understood from the letters that he should not, on behalf of the appellant, send the documents that he had already provided to the Department.

19 The appellant’s brother said that he had read the decision of the Tribunal and that it did not refer to any of the documents that he had provided. He said that had he known the Tribunal did not have, or did not look at, all the documents he had provided to the Department, he would have submitted the documents to the Tribunal and brought them to the Tribunal’s attention.

20 The primary judge accepted the evidence of the appellant’s brother that he had forwarded the documents to the Department and that the documents were not listed amongst the documents to which the Tribunal had had regard. Further, the primary judge also held that it was more likely than not that all the country information documents that were before the delegate had also not been forwarded to the Tribunal.

21 The primary judge held, however, that no procedural unfairness had occurred as a consequence of these circumstances. The primary judge found that having regard to the findings of fact made by the Tribunal any failure to transmit the documents would have made no difference to the outcome which depended entirely upon the Tribunal’s assessment of the appellant’s credibility. In relation to the departmental documents, the primary judge found that there was no evidence that the appellant or his brother were misled or would have acted differently in relation to the country information if they believed that it had not been sent on to the Tribunal. The primary judge said:

‘There is nothing to suggest any basis upon which the applicant’s case could have been salvaged by any country information before the delegate, even on the assumption that none of it was before the Tribunal. This is true also of the documents said to have been sent to the delegate by the applicant’s brother. The most that can be said of them is that they were of a general character relating to the treatment given to known or suspected Mujaheddin sympathisers on their return to Iran. They were at least in part untranslated. Procedural fairness did not require the Tribunal to translate them.’

22 On these grounds the primary judge found that there is no procedural unfairness arising from the fact that the documents had not been before the Tribunal.

23 The primary judge also dismissed the other grounds for judicial review that were relied upon including the claim that the appellant was not given a sufficient opportunity to comment on the materials relating to his application for a visitor’s visa and the materials before the IRT.

Grounds of appeal

24 The appellant filed a notice of appeal on 2 December 2004 that referred to 4 grounds of appeal. These were:

‘The Learned Trial Judge erred in law in holding that:

2.1 Any failure to transmit the documents referred to in the delegate’s decision record would have made no difference to the outcome which depended entirely on the Tribunal’s assessment of the Appellant’s credibility.

2.2 Any documents submitted by the Appellant’s brother to the delegate or the Tribunal would not, if they had been considered, have made [any] difference to the outcome of the Tribunal proceedings.

2.3 The Appellant or his brother would not have been mislead [sic] or would not have acted differently in relation to the country information in the delegate’s decision record if they believed the documents had not been sent to or considered by the Tribunal.

2.4 There had been no unfairness in the way that the Appellant was dealt with in respect of the materials before the IRT.’

25 However, at the hearing of the appeal, counsel for the appellant advised the Court that the appellant now intended to advance only one argument in support of the appeal.

26 Counsel for the appellant submitted that the primary judge had erred in holding that there had been no procedural unfairness because he had failed to have regard to the possibility that the misapprehension on the part of the appellant and his brother as to the presence of documents before the Tribunal, may have materially contributed to the Tribunal making the adverse credibility findings that it made in relation to the appellant.

27 Counsel submitted that it is notorious that the demeanour of a witness can be an important factor in the assessment of credibility by a fact-finding body. Therefore, it was argued, before the primary judge came to the conclusion that the absence of the documents made no difference to the fairness of the hearing, it was incumbent on the primary judge to have considered whether the demeanour of the witnesses before the Tribunal may have been affected by their misapprehension regarding the missing documents. The need to have regard to this possibility was particularly important, so counsel argued, in cases where adverse credibility findings were made in, what counsel referred to as, a ‘cross cultural’ context. Counsel further submitted that the primary judge had erred in failing to have regard to this factor and that this error infected his finding that the absence of the documents had not resulted in any practical unfairness.

28 In our view, the argument advanced by counsel for the appellant should be rejected. The adverse findings that the Tribunal made in relation to the appellant’s credibility were not based upon any finding in relation to the appellant’s, or any other witness’, demeanour whilst giving evidence to the Tribunal. The Tribunal’s adverse findings in relation to credibility were founded upon two main sources. First, on the inherent implausibility of the version of events which was advanced by the appellant and second, on inconsistencies between the version of events advanced by the appellant in support of his application for a protection visa and the statements made before the IRT in support of his application for a short term visitor’s visa. In other words, the findings of credibility were based upon objective evidence and not upon demeanour. There was nothing in the reasons for decision of the Tribunal which would have, or ought to have, alerted the primary judge to the prospect that demeanour may have played any part in the adverse findings made by the Tribunal. There was no error by the primary judge in his failure to advert to this issue.

29 Accordingly, in our view the appeal should be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Marshall, Mansfield & Siopis.

Associate:

Dated: 8 August 2005

Counsel for the Appellant:	Mr M Rynne (Pro Bono Counsel)
Counsel for the Respondents:	Mr M Ritter SC
Solicitor for the Respondents:	Australian Government Solicitor
Date of Hearing:	12 May 2005
Date of Judgment:	8 August 2005