W70/2001 v Minister for Immigration & Multicultural Affairs [2001] FCA 1159 (24 August 2001)

Last Updated: 24 August 2001

FEDERAL COURT OF AUSTRALIA

W70/2001 v Minister for Immigration & Multicultural Affairs [2001] FCA 1159

MIGRATION - application for protection visa - review of decision of Refugee Review Tribunal - applicant's original claim for refugee status was baseless and applicant advanced sur place claim before the Tribunal - whether the Tribunal misconceived applicant's case by treating it as if he had advanced two claims - whether the Tribunal failed to properly address a material question of fact in finding that a circumstance was not "plausible" - whether actual bias

W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679 distinguished

Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910 distinguished

Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 referred to

Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885 referred to

Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565 referred to

Hathaway The Law of Refugee Status (1991)

W70/2001 v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W 70 OF 2001

HELY J

24 AUGUST 2001

SYDNEY (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 70 OF 2001

BETWEEN:	W70/2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	24 AUGUST 2001
WHERE MADE:	SYDNEY (HEARD IN PERTH)

THE COURT ORDERS THAT:

1. The application be dismissed with costs.

2. The applicant be known only as W70/2001.

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 70 OF 2001

BETWEEN:	W70/2001 APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	HELY J
DATE:	24 AUGUST 2001
PLACE:	SYDNEY (HEARD IN PERTH)

REASONS FOR JUDGMENT

1 This is an application under Part 8 of the Migration Act 1958 (Cth) ("the Act") for the review of a decision of the Refugee Review Tribunal ("RRT") given on 1 March 2001. By that decision RRT affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. The applicant is a citizen of Iran who arrived in Australia on 27 June 2000. He lodged a statutory declaration dated 12 October 2000 in support of his claim for a protection visa. That declaration disclosed that the applicant was educated at Shiraz University. One of his lecturers was Dr Zad Mehr ("ZM1"). The applicant claimed to have developed a close relationship with ZM1 and to have had many political discussions with him.

2 The applicant finished his degree in 1995 and enrolled in a post-graduate degree at the University of Amirkabir. He continued with his political activities until September 1996. Those activities included organising a guest speaker, Dr Sorosh, to attend a seminar. The seminar was attacked by pro-government militia groups. Shortly after the seminar the applicant was expelled from the University.

3 The applicant was conscripted to do his military service in March 1997 and was assigned to the missile section of the Defence Ministry. He continued his contact with ZM1.

4 In May 2000 the applicant was watching the news and saw that three men had been arrested in Shiraz and accused of spying for Israel. One of those men was ZM1. The applicant became frightened because of his links with ZM1, and because he had given him information in relation to missiles.

5 The applicant and some friends who also had a close relationship with ZM1 decided they should escape from Iran, because they feared that ZM1 would reveal their names under interrogation. On advice they left Iran legally.

6 The applicant and his two friends left Iran on 6 June 2000. One friend, Saeed remained behind. Whilst in Indonesia the applicant was informed that Saeed had been arrested after their departure from Iran. In a statutory declaration made on 12 October 2000, the applicant said:

"15. We departed Iran legally on 6 June 2000. We travelled to Malaysia and then to Indonesia. In Indonesia we telephoned another friend (Mehran Madankan) that informed us that the fifth student in our group (Saeed) had been arrested after we left Iran. Saeed had not been able to leave with us because he did not have the money. He was planning to leave the country through the border with Pakistan. Saeed had a brother that was in the Mujahadin. When we spoke to Mehran from Indonesia we asked for him to contact our families to tell them that we were safe. We realised that by then, the authorities would have had an interest on us.

...

17. If I return to Iran I will be executed. Whilst we may not have been of interest to the authorities at the time we left Iran, we are certain that this is now the case (because of the news of Saeed). I will be accused of being a spy and interrogated. I have information about Iran's missiles and I could well be linked to Dr Zad Mehr. Furthermore there is also my previous record and expulsion from University. I believe that Dr Zad Mehr and Saeed may have been tortured and possibly given my name."

7 The applicant arrived in Australia on 27 June 2000. On 2 July 2000 he was interviewed at Curtin IRPC. The record of that interview does not contain any reference to ZM1 or to Saeed. Questions designed to elicit details of any involvement on the part of the applicant in political activities, or any political group or organisation were answered: "none".

8 The involvement with ZM1 and the arrest of Saeed were each disclosed in the statutory declaration of 12 October 2000. RRT noted that the applicant's claim that he did not raise the arrest of Saeed in his first interview with DIMA because he was afraid of being deported, but claimed that he raised it later with ASIO. The applicant was interviewed by ASIO, but when that interview occurred does not appear. RRT also noted the applicant's claim that he did not mention ZM1 in the first interview because he was afraid about giving names. It was only when interviewed by ASIO that he was given an assurance of confidentiality.

9 After the applicant's Department of Immigration & Multicultural Affairs' ("DIMA") interview on 20 October 2000, he claims that he telephoned his family and was distressed to learn not only that Saeed had confessed, but that the Ettela'at had raided his family's home, and on not finding the applicant there, seized his younger brother Javad, and took him away. His family has not been able to discover what happened to him.

10 At some stage it was discovered that the person actually arrested was Dr Asher Zadmehr ("ZM2"), an English language professor and senior religious leader from Shiraz. The fact that there were two persons at Shiraz University with similar names, and that ZM2 had been arrested, whereas ZM1 had not, appears to be a discovery made by the Minister's delegate. It is referred to in his decision record of 21 November 2000. In the light of that information, the applicant accepts that he left Iran fearing persecution on grounds which it now appears were not well-founded. The applicant confirmed at the hearing before RRT that he had no problem as a result of the arrest of ZM2 as he did not even know that person. In a supplementary statement of 17 January 2001 the applicant said:

"1. I note what the case officer said about the English lecturer and I now accept that my fears that it was Dr Zad Mehr who was arrested may have been a big mistake. But because of the information that I had provided to Dr Zad Mehr and my association with Dr Sadaat with whom I had visited Southern Iran and who it is said, the Israelis had killed, I was justified in my very strong fear.

2. Now what I fear most and the reason why I cannot return to Iran is the arrest of our friend and colleague Saied and the report about my family which I received when I was released into the open section of Curtin IRPC about Said's arrest and the descent by Ettela'at on our family home and the arrest of my younger brother Javad. They would have searched our house. There can now be no doubt that the Ettela'at know all about me and want me for interrogation to start with. That dooms me.

...

5. The case officer used the opinion from the Foundation of Iranian Studies in Methesda, Maryland about Dr Soroush but not correctly. I am at severe risk now because I was politically active when I was involved with the invitation to Dr Soroush to address our seminar. Dr Soroush, it should be known, wrote for the magazines Kian and Iran-e-Farda."

11 At CB 165-166 RRT records that the applicant claims to have a genuine and well-founded fear of persecutory treatment by the Iranian Ettela'at for reasons of imputed political opposition to the ruling fundamentalist Islamic theocratic leadership in Iran. RRT perceived the applicant's claim to be based upon events which occurred prior to the applicant's departure from Iran as well as on matters which occurred and which came to the applicant's attention after that departure. That perception is consistent with the submissions put to RRT by the applicant's adviser by letter of 25 January 2001 which listed his activities as a political dissident at university as the first of the grounds on which he feared persecution.

12 RRT rejected all of the applicant's substantial claims. Specifically RRT:

- rejected the claim that the applicant had a close political relationship with ZM1;

- was not satisfied that the applicant was involved in any action in Shiraz that now gives rise to a well-founded fear of persecution;

- rejected the claim that the applicant was expelled from Amirkabir University because he organised for Dr Sorosh to attend a lecture at the University;

- was not satisfied that the applicant had come to the adverse attention of the authorities for reason of his political activity or for any other reason;

- did not accept that the applicant was as politically active as he claimed;

- did not accept that such political involvement as the applicant had whilst at University would cause him harm today;

- found that when the applicant left Iran he did not have a well-founded fear of persecution for any Convention reason.

13 So far as the sur place claims are concerned RRT:

- rejected the claim that the applicant will be persecuted because the authorities may think that because he left the country, he has revealed to ASIO or others secret information gained whilst working for the rocket testing division;

- was not satisfied that the applicant has any political profile of interest to the authorities;

- rejected the applicant's claim that he will face any Convention difficulty because of a lack of a passport or other documentation although he might face extensive questioning;

- found that there was no evidence that failed claimants or deportees face any significant problems on return to Iran unless the asylum-seeker concerned had a high opposition political profile. Even if press publicity associated with the applicant's arrival in Australia was sufficient to identify him, that would not give rise to a fear of persecution;

- rejected the claim that Saeed and Javad were arrested as the applicant claims.

Grounds of review

Ground 1

14 Ground 1 asserts that the Tribunal misconceived the applicant's case by treating it as if he had advanced two claims, the first based on the situation which existed prior to his departure from Iran, and the second based on events which took place after his departure, and which would have grounded a sur place application for refugee status. In so doing it is contended that RRT identified a wrong issue, acted without jurisdiction and based its findings on irrelevant considerations.

15 The applicant relied on a continuum of events beginning with his time at the University of Shiraz, up to and including the arrest of Saeed and Javad, as establishing a subjective fear of persecution which was objectively well-founded. The submission from his adviser to RRT made that plain.

16 Once the applicant learnt of his error in relation to ZM1 and ZM2, it might be technically correct to characterise his claim thereafter as being a sur place claim. But assessment of that claim necessarily involved consideration of the applicant's claims as to his political activities in Iran, and in giving consideration to those issues RRT neither identified a wrong issue nor based its findings on irrelevant considerations.

Ground 2

17 Ground 2 asserts that by treating the applicant's evidence of his activities as a student as if it were the basis of his fear of persecution, rather than the background to fears based on a sur place claim related to more immediate events, the Tribunal identified a wrong issue and reached a decision for which it did not have jurisdiction, and based its findings on irrelevant considerations.

18 It is the applicant's contention that if returned to Iran without travel documentation he will be questioned; as a result of that questioning there will be an enquiry as to his past; as a result of that enquiry his political activism whilst at University will be uncovered.

19 For similar reasons to those given in relation to ground 1, this ground on which review is sought fails. RRT simply did not accept that the applicant was of any interest to the authorities by reason of any activities which he had undertaken whilst he was at University.

Ground 3

20 This ground asserts that in rejecting the applicant's claim to have been an anti-government activist, on the basis that he would not have been posted to a sensitive missile post during his military service if he did not enjoy the confidence of the Iranian security services, RRT acted outside jurisdiction, made a finding of which there was no evidence and made a finding of fact so unreasonable that no reasonable Tribunal of fact would have reached it.

21 The Tribunal's treatment of this topic was as follows:

"The applicant said that he worked in the Ministry of Defence for the rocket testing division and they may think that he will reveal some of the confidential information he guarded because he had left the country. I reject this claim. The fact that the applicant was able to do his military service in such a sensitive site is an indication that he is held in high regard by the authorities. Further, he previously left Iran and returned and found employment without the slightest difficulty after he finished his military service. I do not accept that simply because he departed Iran again it will be assumed that he has revealed secret information."

22 The applicant asserts that there was simply no evidence or other material before the Tribunal on which it could found a conclusion that the fact that the applicant was able to do his military service in such a sensitive site is an indication that he is held in high regard by the authorities.

23 At the RRT hearing, the applicant accepted that he was put in a very sensitive position for military service. He also accepted that if he were suspected of being a political dissident he would not have been accepted for military service. RRT is entitled to act upon its own knowledge, and to draw inferences on the basis of fragmented information. It was entitled to draw the conclusion which it did as a matter of common sense based upon its knowledge of the circumstances in Iran without the need for direct and specific information to that effect. There is of course a difference between mere speculation, which is impermissible, and the drawing of inferences which is both permissible and appropriate. The Tribunal's finding in this respect falls into the latter category.

Ground 4

24 Ground 4 asserts that in rejecting the applicant's claim to have had a close political association with ZM1 on the basis that, had the applicant had such an association, he would have known that he was Jewish, and would not subsequently have been mistaken as to his arrest, RRT identified wrong issues, based its findings on irrelevant considerations and made a finding of fact for which there was no evidence or other material and which was so unreasonable that no reasonable Tribunal of fact would have reached it.

25 RRT's finding on this issue was as follows:

"Had the applicant known his lecturer for many years and worked as closely with him as he claims he would have realised if his maths lecturer was Jewish in the context of Iranian politics. The applicant claims he did not even know the religion of [ZM1]. In the Iranian theocracy where religion plays a large part in life I do not consider it plausible that such a matter would go unnoticed by the applicant. Furthermore, in the particular circumstances the applicant describes and given the nature of his group, which the applicant claims is critical of clerics ruling Iran, I do not accept as plausible the fact that this issue would not be arisen in discussions. I am not satisfied that the applicant had the type of relationship involving politics and social criticism with his professor as he claims."

26 I am conscious of the observations in W148/00A v Minister for Immigration & Multicultural Affairs [2001] FCA 679, and in Thevendram v Minister for Immigration & Multicultural Affairs [2000] FCA 1910 that in some cases a bare statement by a decision-maker that a claimed circumstance is "not credible" or is "implausible" may cloak the failure of the decision-maker to address and resolve a material question of fact. But that is not the case here. RRT gives reasons why it comes to the conclusion that it does not accept as plausible the fact that the issue of ZM1's religion would not have arisen in the course of discussions of the type for which the applicant contended.

27 There is no evidence in the record of the position of Jews in Iran but the tension between Iran/Islam on the one hand and Israel/Judaism on the other is common knowledge. In my opinion, RRT did not need specific evidence on this topic before it could draw the conclusion which it did.

28 Even if I am wrong in this conclusion, and if the applicant's contention is well grounded, it leads nowhere. The applicant now accepts that there is nothing about his relationship with ZM1 which will cause him any difficulty. The particular finding is a stand alone finding which does not lead to any relevant consequences so far as the applicant's sur place claim is concerned.

Ground 5

29 This ground asserts that in finding that RRT was not satisfied that the applicant would face persecution for reason of his lack of passport or other documentation, the Tribunal failed to take into consideration the real chance that return to Iran in such circumstances would alert security authorities to his previous history, including association with Saeed, who has now been arrested, and his security sensitive employment in a missile site, and in the oil industry, leading to suspicion that he may have been involved in activities contrary to the interests of the state while in Australia. Thus the Tribunal failed to identify a relevant issue, acted without jurisdiction and erred in law by an incorrect application of the law to the facts.

30 The applicant did not claim that he feared persecution by reason of his involvement in the oil industry. All other elements of this ground were the subject of specific consideration by the Tribunal which made findings adverse to the applicant's contentions in this respect. RRT considered the country information on the subject of returned asylum seekers and concluded that a person such as the applicant would not be at risk on his return. RRT rejected the applicant's claim that he was exposed to risk by reason of any association with Saeed, and rejected the claim that the authorities would assume that he had disclosed military secrets.

Ground 6

31 This ground alleges that in rejecting the applicant's claim that his present fear of persecution was based upon the arrest of Saeed, on the basis that it had not been raised at the first opportunity, the Tribunal made a finding of fact for which there was no evidence or other material to support it, and which was so unreasonable that no reasonable Tribunal of fact would have found it, and failed to consider whether there was a real chance that the applicant was being truthful in making this claim.

32 At CB 186-187 RRT said:

"The applicant now claims that he may not have been of interest to the authorities at the time he left Iran but now he is at risk because Saeed (or Saied) was arrested.

In an interview with DIMA on 2 July 2000 the applicant gave several reasons for leaving Iran but did not mention this as a reason. The applicant claims he did not mention Dr Zad Mehr or Saeed in the interview that he had with DIMA because he was afraid about giving names. I reject this claim because it is the applicant's claim that he came to Australia to claim refugee status. I must take into account that the applicant is an educated man with some experience in travelling and employment. I do not accept that he would not have mentioned these important matters had they been true and had this been the reason for his travel to Australia. Furthermore it is inconsistent with his claim that neither he nor his family had involvement in activity against the government or political groups."

As earlier indicated, there is no mention of ZM1 or Saeed in the record of the interview of 2 July 2000. Both are referred to in the statutory declaration of 12 October 2000. RRT earlier noted the applicant's claim that he made the disclosures in the declaration of 12 October 2000 after ASIO assured him that his disclosures would be kept confidential.

33 Hathaway in The Law of Refugee Status (1991) states at 84:

"... the decision maker must be sensitive to the fact that most refugees have lived experiences in their country of origin which give them good reason to distrust persons in authority. They may thus be less than forthright in their dealings with immigration and other officials, particularly soon after their arrival in an asylum state."

34 It was a matter for RRT to decide whether to attach any, and if so what, significance to the non-disclosure of these matters at the first interview, and to decide whether it accepted the applicant's explanation for non-disclosure. RRT concluded that the failure to disclose was significant. For reasons which RRT gave it came to the conclusion that the matters would have been disclosed at the first interview if they were true. RRT dismissed them as being in the nature of a recent invention.

35 This ground is in substance a complaint about the merits of the Tribunal's decision, and discloses no proper ground of review.

Ground 7

36 This ground alleges that the conduct of the hearing by the Tribunal in an adversarial rather than an inquisitorial manner, coupled with the errors referred to above, indicates that the decision to affirm the refusal of a protection visa was induced or affected by actual bias.

37 In Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at 438 Gleeson CJ and Gummow J said:

"The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented."

Whilst it is clear that a conclusion of actual bias may be drawn by inference of the circumstances, a conclusion of actual bias is not one which is to be lightly made: Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885. Whilst Wednesbury unreasonableness is not a ground of review under Part 8 of the Act, demonstration that conclusions reached by RRT ought to be so characterised could be relevant to a claim of actual bias.

38 In Jia at 429 Gleeson CJ and Gummow J referred to the observations of French J at first instance to the effect that the fact that an applicant may have demonstrated that on the decision-maker's provisional views he has an uphill job to persuade him away from those views is not enough to demonstrate actual bias. In Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565 at [81] Stone J said, referring to the decision of Sackville J in Yit:

"Sackville J drew attention to the fact that the role of the Tribunal involves a variety of fact finding and information gathering functions that are characteristic of an administrative decision-making process and are very different from the role of a Court exercising judicial functions. This role may necessarily involve a Tribunal in forming tentative conclusions as it goes through the process of fact finding and information gathering. This process does not, in itself, indicate bias."

39 I have read the transcript of the hearing before the Tribunal. Questions put by RRT to the applicant indicate that the Member was highly sceptical about aspects of the applicant's claims. I will give some examples:

"Yes, but you see, I can't believe that an intelligent, political activist would mix up a Jewish/English language professor with an Iran mathematics professor."

(P 9)

...

"Mr White: Yes, well, I have great difficulty believing that an intelligent political activist like you wouldn't know the difference between a Jewish Rabbi and his own mathematics lecturer who he rings up by phone quite regularly."

(P 15)

...

"Mr White: Well, you know, I just don't believe that you can be so involved with someone over several years and you can pass on information about missiles to him, but you don't even know if he is Jewish or otherwise. That is just too difficult for me to believe, I think."

(P 16)

...

"Mr White: Well, I don't think that was a mistake, was it? It was just a story that you told when you got here because you thought you could pull - you thought you could tell a story to immigration and get away with it? It wasn't a mistake, was it?"

(P 21)

40 The passage of the transcript upon which the applicant principally relies is as follows:

"Mr White: Well, you see, I'm not sure that I believe either your friend Saeed or your brother being arrested. That's one of the things I'll consider when I'm deciding your case. Because if I don't believe that then it seems to me that you just don't have a serious case. Your advisers made some quite lengthy submissions on more general issues relating to being out of Iran as well as some submissions about the current situation in Iran and the security forces there I also need to consider more carefully. But it seems to me you are probably like so many young men in Iran today, who just want to migrate somewhere, who are educated, relatively well off but would like to do well financially and can do much better in a western country than they can at home."

41 In the applicant's submission the quoted passage is an expression of an attitude which the Member had; it reflects views which he held at the outset of the inquiry from which he was not prepared to budge.

42 On page 24 the following appears:

"Mr White: Well, I mean, you spent a lot of money coming to Australia. I can appreciate that. But the trouble is that you didn't - it seems to me that you - you didn't just make a mistake about your lecturer, but you actually made up a story because you thought it would help you. And the reason you didn't mention Saeed's arrest at the first opportunity was that it didn't happen and that you needed more time to make up a story. So these are the decisions that I have to make when I come to deciding your case, which I'd hoped to do in the next week or so. I haven't made a decision yet but I'm just trying to point out to you some of the crucial areas that I'll be thinking about when I come back to decide your case."

The applicant responded to this observation with an assertion that he had been truthful, and gave some reasons why he would not fabricate his account.

43 The last passage which I have quoted from indicates that the views which the Member was putting to the applicant were preliminary or tentative, and that the Member was open to persuasion. I do not think that his statement was just a piece of window dressing. A fair reading of the transcript leads to the conclusion that the Member put the matters which concerned him squarely to the applicant and invited him to deal with them. It was open to the Member to form the view that these matters were of concern. Directing an applicant's attention to perceived problems with his evidence, however bluntly, is not reflective of bias. In the passage quoted in [42] above the Member was putting one possible and legitimate interpretation of the applicant's circumstances to him for comment. The claim of actual bias fails.

44 The application should be dismissed with costs.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated: 24 August 2001

Counsel for the Applicant:	Dr J Cameron
Counsel for the Respondent:	Mr A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 August 2001
Date of Judgment:	24 August 2001