Moghaddam v Minister for Immigration & Multicultural Affairs [2000] FCA 107 (9 February 2000)

Last Updated: 24 February 2000

FEDERAL COURT OF AUSTRALIA

Moghaddam v Minister for Immigration & Multicultural Affairs [2000] FCA 107

MIGRATION - application for review - decision of Refugee Review Tribunal affirming delegate's decision of refusal of protection visa - whether Tribunal in error of law - whether error in incorrect interpretation of applicable law - whether error in incorrect application of the law to the facts as found by the Tribunal - whether jurisdiction to find error in that Tribunal made findings of fact not rationally supported by probative evidence - whether no evidence ground made out

Migration Act 1968 (Cth) s 476

Administration Decisions (Judicial Review) Act 1977 (Cth) s 5(3)

Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212

Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962

Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338

Pat Tai Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1156

Tuli v Minister for Immigration & Multicultural Affairs [1999] FCA 271

HOOSHANG YOSAFPOOR MOGHADDAM v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 78 of 1999

R D NICHOLSON J

9 FEBRUARY 2000

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 78 OF 1999

BETWEEN:	HOOSHANG YOSAFPOOR MOGHADDAM Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	R D NICHOLSON J
DATE OF ORDER:	9 FEBRUARY 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondent's 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 78 OF 1999

BETWEEN:	HOOSHANG YOSAFPOOR MOGHADDAM Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	R D NICHOLSON J
DATE:	9 FEBRUARY 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

1 This is an application brought under s 476 of the Migration Act 1968 (Cth) ("the Act"). It seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 9 July 1999. The Tribunal affirmed the decision of a delegate of the respondent not to grant a protection visa to the applicant.

2 The applicant, when he arrived in Australia on 20 February 1999, was a 42-year-old male citizen from Iran. He arrived without travel or identification documents and lodged an application for a protection visa. His other circumstances and the findings made in relation to him are set out in the reasons of the Tribunal:

"(i) The Applicant was a businessman in Iran who maintained contact with former high school friends who met on a regular basis and, amongst other things, would discuss "current affairs" which were issues that had been aired in the public media and were not dangerous to discuss.

(ii) The Applicant said that he had not encountered any difficulties with the authorities prior to October 1998, apart from being charged and fined for having a banned satellite dish.

(iii) The cassette of the banned pro-Mojahedin singer was confiscated when the Applicant's satellite dish was confiscated and it was in evidence before the Iranian court, and despite the Applicant's continued use of satellite television three years after it was banned and having some banned music in his possession, he was still only fined.

(iv) The court that sentenced the Applicant was aware that he was receiving satellite signals and that he possessed banned music, but it still only fined him.

(v) The Applicant remained in Teheran for at least a further year without any difficulty, and if he was suspected or any dissidence related to politics or religion, the Tribunal was satisfied that he would have been at least interrogated about them by one of the state agencies that maintain security in Iran.

(vi) The fact that the Applicant was not even questioned and continued to operate his successful business in Teheran led to the conclusion that the episode of the satellite dish was not perceived as being a sign of dissidence but was a breach of the law that was finalised with the fine and confiscation of materials.

(vii) The Applicant gave the impression of a person totally attuned to the need to be circumspect in an environment where he could never be certain who his enemies were, and in those circumstances, it was not believable that he would express views punishable by execution in front of two complete strangers, as he claimed to have done. The Tribunal did not believe he would express such dangerous views without at least checking with his friends who the interlopers were.

(viii) The Tribunal was satisfied that if the Applicant was believed to be any danger at all to the Iranian regime, he would not have been released as he claimed following his alleged detention during which he was interrogated, mistreated, and accused of being affiliated with the Mojahedin. The Applicant's explanation for his release was not credible.

(ix) The Tribunal accepted that the Applicant may have been detained and interrogated at some stage before he came to Australia, but it did not believe that he was detained for the reasons he had claimed, or that he was suspected of being a dissident or of opposing the government in a manner which might now lead to him encountering serious harm should he return to Iran.

(x) The Tribunal did not believe that the Applicant was released on reporting conditions, that he was under some sort of special surveillance or that he received a call warning him to leave the country because he was about to be arrested for association with the Mojahedin. If the Applicant had been accused of being a member of the Mojahedin, the officials keeping him under surveillance had ample opportunity to act before he left the country.

(xi) The Tribunal accepted that officials may have asked the Applicant's spouse his whereabouts after he left the country, but no harm came to her as a consequence of that inquiry, and that the Tribunal was satisfied that those officials were merely seeking an explanation for the Applicant's absence from his workplace and home.

(xii) The Tribunal did not accept the Applicant's explanation that he did not disclose his claim that his family was forced to move north because it was unsafe for them to live in the family home in Tehran to the delegate because he thought his application would be successful, and that he did not disclose it to his adviser as she was in Perth and could not help his family. This was information that went to the core of the Applicant's claims to be a refugee and there was nothing in his communications with the delegate to suggest that his application would be resolved one way or the other. Nor was there any reason for the Applicant to believe that it was his adviser's role to help his family in Iran, or, in light of her inability to do so, that he should withhold relevant information from her.

(xiii) The Tribunal was satisfied that the information was not forthcoming from the Applicant as it was fabricated at a later date.

(xiv) The Applicant did not disclose in a timely manner the information that his friends had disappeared, and the Tribunal did not accept that an applicant with genuine information would not have provided it in a timely fashion.

(xv) In all of the circumstances, the Tribunal was satisfied that the Applicant had fabricated claims that his friends had "disappeared" as a response to the delegate's refusal of his application and not because such events actually occurred.

(xvi) Although the Applicant might be punished for the offence of leaving Iran illegally, the Tribunal was satisfied that any such punishment would not be excessive and would be the consequence of breaching a law of common application applying to all Iranian citizens, regardless of their race, religion, nationality, membership of a particular social group or political opinion.

(xvii) The Tribunal did not accept that the Applicant was suspected of being a member or supporter of the Mojahedin. It was not credible that he was accused of being a Mojahedin member or supporter and was released so that the authorities could follow him and catch his contacts. Nor that if they did follow him, he could have escaped the country.

(xviii) It was possible that the Applicant had left Iran without passing through the normal channels, but the Tribunal was satisfied that his departure was unrelated to any Convention reason that he had disclosed in his claims, and that he could not have effected it as he described if he was being watched as claimed.

(xix) The Applicant was not a reliable witness in assessing facts that were material to his case, and the Tribunal did not accept that he was affiliated with the Mojahedin or that he was suspected of such an affiliation, or that he was imputed to otherwise oppose the government and its officials, including religious leaders.

(xx) The Applicant did not have a well-founded fear of persecution for those or for any other Convention reason."

3 It will be seen that the Tribunal did not believe the applicant in relation to a number of matters as set out in the above paragraphs. This shows the importance of findings made by a Tribunal in determining the fate of applications because those findings cannot be reviewed unless coming within the limited grounds of review in s 476 of the Act.

4 The grounds of review relied upon for the applicant are set out in his application. This is in a common form apparently used at the Port Hedland Detention Centre.

5 The second of the grounds relied upon in par 4(b) of the application is as follows:

"The decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence, and it failed to rationally consider the probative evidence that was before it."

6 That is not a ground of review which comes within s 476(1). Furthermore, it is wholly or substantially not a ground of review because of the application of s 476(2)(b). The Court does not have any jurisdiction beyond that in s 476; see s 485 of the Act.

7 That leaves the ground in par 4(a) of the application. The first element to that is it is alleged that the Tribunal decision involved an error of law, being an error involving the incorrect interpretation of the applicable law. In its reasons under the heading "The Legislative Framework", the Tribunal sets out the law upon which it relies. There is reference to the relevant provisions of the Act and Regulations and of the Convention and in addition, the leading authorities decided by the High Court of Australia.

8 In my view there is no basis for any finding that the Tribunal incorrectly interpreted the applicable law.

9 The ground with which I have just dealt comprises the first limb of s 476(1)(e) of the Act. The second limb of that paragraph is invoked by the second part of ground 4(a) of the application. It alleges that the Tribunal's decision involved an error of law because it involved an incorrect application of the law to the facts as found by the Tribunal.

10 The applicant appears on this application unrepresented. He was represented before the Tribunal. He has told the Court that he received advice that he could not obtain representation on this hearing because it was considered that there was no merit in his grounds of application. That of course is not a view which binds me and I am bound to independently reach my view on his application. Throughout the hearing the applicant remained troubled that he was unrepresented. The result of his lack of representation is to cast an additional responsibility on the Court, assisted by Counsel for the respondent.

11 Although unrepresented, the applicant has had the benefit of extensive submissions prepared by the Iranian Refugees Alliance Inc. These are very carefully prepared submissions, extensive and detailed. Unfortunately, most of what is raised in the submissions is not within the jurisdiction of this Court to have regard to, pursuant to s 476(1) of the Act. The first such matter is dealt with in the paragraph headed, "1. RRT has failed to assess evidence material to the claim." A failure to take into account a relevant consideration is expressly excluded from jurisdiction by s 476(3)(e). The second matter is headed, "2. Inconsistencies found by the RRT are not based on the evidence." Taking into account an irrelevant consideration is not a permissible ground of review - see s 476(3)(d). In the course of that section, reference is made to the claim that "[i]t is unreasonable to assume that a refugee applicant should know what goes to the core of his claim without first consulting with his adviser." So far as this is a claim that the Tribunal's decision involved an exercise of a power that is so unreasonable, no reasonable person could have so exercised the power, it is precluded from the Court's jurisdiction by s 476(2)(b).

12 That then leaves the two matters in the written submissions which are potentially within jurisdiction. They each arise from the following paragraph of the Tribunal's reasons:

"Likewise, he did not disclose in a timely manner the information that his friends had "disappeared". His adviser submitted that he was hesitant because the information may not be believed. That was not the Applicant's own explanation and was not his explanation for failing to provide the earlier information about his family's move to the north. The Tribunal does not accept that an applicant with genuine information would not provide it in a timely fashion. In this case, as discussed above, the Tribunal does not believe that the Applicant was detained for reason of his political opinions. If his story is to be believed, he says he was detained because he was at a meeting with his friends yet, according to his evidence, they were not detained at that time or for a significant period afterwards, despite his claim that there was a campaign to falsely accuse people of Mojahedin links following Lajavardi's assassination. In that regard, he said that Lajavardi was a subject of critical comment at the meeting attended by the informers. Further, the Applicant states that he did not wish to call his spouse or his father because they might be under surveillance, yet he called his wife's brother and says they communicated in some sort of code. If he believes family members are at risk, the Tribunal wonders why his brother-in-law might not also be at risk and, if he can camouflage the contents of his communications, it wonders why he did not call his wife or father. In all of the circumstances, the Tribunal is satisfied that the Applicant fabricated claims that his friends had "disappeared" as a response to the delegate's refusal of his application and not because such events actually occurred."

13 The first such relevant statement is that the applicant did not disclose in a timely manner the information that his friends had disappeared. The second statement is that the applicant said his friends were not detained at the time he was arrested or for a significant period afterwards. In respect of both those tribunal findings it is claimed there is no evidence to support them.

14 Section 476(1)(g) of the Act permits this Court to review a tribunal decision on the ground "that there was no evidence or other material to justify the making of the decision." However, s 476(4) provides that such ground is not to be taken to be made out unless (a) -then follows an inapplicable condition - or (b) "the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist."

15 The provisions of s 476(4) are identical to those in s 5(3) of the Administration Decisions (Judicial Review) Act 1977 (Cth). The operation of s 5(3)(b) was considered in the judgment of Black CJ with which Spender and Gummow JJ agreed, in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212. At 220-221 Black CJ said:

"Section 5(3)(b) does not require the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance."

16 At p 224, Black CJ concluded that the requirement of establishing that a particular fact did not exist is to be satisfied by admissible evidence in Court and that the evidence on the issue is not limited to material which was before the decision-maker.

17 This decision in Curragh has been accepted and applied in the context of the Act - see Fernando v Minister for Immigration & Multicultural Affairs [1999] FCA 962 and Vichlenkova v Minister for Immigration & Multicultural Affairs [1999] FCA 1338. In Fernando, Heerey J raised the analogy of a net which does not necessarily fail because one or more of its constituent strands fail so that if there were many strands to a tribunal decision, absence of evidence on the existence of the particular fact may not necessarily provide a proper ground for review. In my view that is restating by way of a further analogy what was said by Black CJ in Curragh at 221 as to the need for the absence of any parallel links.

18 There is a further point made in the authorities and it is that even if the requirements of s 476(4)(b) are satisfied, it is still necessary for an applicant to show in terms of s 476(1)(g) that there was no evidence or other material to justify the making of the decision. This is making the same point as in Curragh at 221 - see also Pat Tai Choi v Minister for Immigration & Multicultural Affairs [1998] FCA 1156 and Tuli v Minister for Immigration & Multicultural Affairs [1999] FCA 271.

19 Turning to the application of those principles to the position of the reasons of the Tribunal, it is apparent that the applicant has not established positively that the particular facts previously referred to did not exist.

20 Furthermore, it is apparent that there were parallel links or a net within the reasoning of the Tribunal. This may be tested by notionally removing from the reasons of the Tribunal the one paragraph previously quoted from which the two no evidence points arise. It is apparent that the Tribunal would have reached the conclusion which it did by parallel links. From an examination of the summary of the reasons of the Tribunal earlier set out it will be seen that it had earlier reached a conclusion of disbelief that the applicant was detained for reason of his political opinions. Consequently, it cannot be said there was no evidence or other material to justify the making of the decision even if the applicant was able to satisfy the requirements of s 476(4)(b).

21 It follows that the applicant's case does not raise a ground which would entitle this Court to interfere with the decision of the tribunal. Accordingly the application should be dismissed.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice R D Nicholson.

Associate:

Dated: 22 February 2000

Mr H Y Moghaddam appeared on his own behalf.

Counsel for the Respondent:	Mr P R Macliver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 February 2000
Date of Judgment:	9 February 2000