W306/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 969 (6 August 2002)

Last Updated: 7 August 2002

FEDERAL COURT OF AUSTRALIA

W306/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 969

MIGRATION - refugee - refusal of protection visa - application for review of Refugee Review Tribunal decision - Iranian national claimed to have exposed government corruption in his workplace by passing information to university students - whether Tribunal misunderstood applicant's claims - whether Tribunal erred by taking into account irrelevant considerations or failing to consider relevant material - whether Tribunal erred in finding applicant's account fabricated

Migration Act 1958 (Cth) ss 5, 36(2), 13, 14, 65, 189, 196, 430, 476(1)(b), (c) and (e)

W306/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

W306 OF 2001

LEE J

6 AUGUST 2002

MELBOURNE (HEARD IN PERTH)

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W306 OF 2001

BETWEEN:	W306/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	LEE J
DATE OF ORDER:	6 AUGUST 2002
WHERE MADE:	MELBOURNE (HEARD IN PERTH)

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal made 30 June 2001 be set aside and the matter remitted to the Tribunal for redetermination.

2. The respondent pay the applicant'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	W306 OF 2001

BETWEEN:	W306/01A APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	LEE J
DATE:	6 AUGUST 2002
PLACE:	MELBOURNE (HEARD IN PERTH)

REASONS FOR JUDGMENT

LEE J:

1 This is an application under s 476 of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed the decision of a delegate of the respondent ("the Minister") that a "protection visa" not be granted to the applicant.

2 On 22 December 2000 the applicant, an Iranian national, aged 36, and qualified as a welder, fitter and turner, entered Australia's "migration zone" not being the holder of a visa issued under the Act. The applicant had left Iran in late November 2000 and claimed to have done so in fear of persecution. Under ss 13 and 14 of the Act, the applicant became an "unlawful non-citizen" upon entry. Pursuant to ss 189 and 196 of the Act, the applicant was placed in "immigration detention" at the Curtin detention centre in north-west Australia and has been kept there ever since. The applicant does not speak English and at all times has relied upon an interpreter to translate into Farsi questions put to him in English and to translate from Farsi to English his responses thereto.

3 An "immigration officer" conducted an "entry interview" with the applicant on 30 December 2000. On 8 January 2001 the applicant applied for a protection visa. The application with a statement by the applicant in support of the application, was prepared for the applicant by a firm of solicitors acting under contract with the Minister to provide such a service to persons in immigration detention. The applicant was interviewed by a delegate of the Minister on 13 January 2001 and the grant of a visa was refused by that officer on 28 February. On 2 March the applicant applied to the Tribunal for review of the Minister's decision. The Tribunal made its decision on 30 June 2001.

4 Under s 65 of the Act, if the Minister is satisfied that, inter alia, the criteria for a visa prescribed by the Act have been satisfied, the Minister is to grant the visa, but if the Minister is not so satisfied, the grant of the visa is to be refused.

5 At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa:

"A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

6 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The phrase "protection obligations under the [Convention]" is not defined in the Act and is not a term used in the Convention.

7 The Convention is a treaty pursuant to which the "Contracting States" agree to apply the provisions of the Convention to "refugees". Sub-Article 1(A) of the Convention provides the following definition of "refugee":

"For the purposes of the present Convention, the term `refugee' shall apply to any person who:...(2)...owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country;..."

Limitations upon the operation of the Convention definition of refugee are set out in, inter alia, sub-Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub-Articles applied to the applicant.

8 As a Contracting State, Australia has accepted the obligations imposed upon it by international law by reason of accession to the treaty. Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All of those obligations could be said to come within a broad meaning of "protection obligations under the [Convention]" but, having regard to the purpose of s 36(2), the phrase as used in that subsection may be taken to refer to obligations imposed by the Convention that are direct, rather than indirect, obligations to protect a refugee.

9 On the hearing of the application, counsel appointed by the Court pursuant to O 80 of the Federal Court Rules to represent the applicant pro bono publico, made submissions on the applicant's behalf. Counsel contended that ground for review of the Tribunal's decision arose under s 476(1)(a) (failure to comply with required procedure), s 476(1)(b) (absence of jurisdiction), s 476(1)(c) (absence of authority) or s 476(1)(g) (no evidence to justify the decision).

10 Pursuant to s 430 of the Act the Tribunal provided a written statement ("the Tribunal's statement") which set out findings on material questions of fact, the evidence or material relied upon, and the reasons of the Tribunal. The Tribunal's statement recorded the following summary of the applicant's claims:

"Shortly after his arrival in Australia the Applicant was interviewed by a departmental officer. In that interview the Applicant stated that he is an Iranian national whose parents and three siblings continue to live in Iran.

When asked why he had left Iran he stated that he had been sacked from his workplace and they wanted to persecute him. He worked for the government and had information in regard to corruption.

He passed that information on and it was then published in a newspaper called `Resalat'.

He received a letter from the company saying that he was sacked due to the breach of dress code (he said no mention was made about the corruption). A friend in the company gave him the letter and he then fled Iran.

He was asked what would have happened if he had not fled.

He replied that he would have been arrested and taken away. He said he would probably have been killed.

He stated that he had never been involved in any political group or organisation."

11 The Tribunal's statement also set out the following extract from the statement by the applicant, presented by the applicant's adviser with the application for a visa lodged on 8 January 2001:

"In 1996, I started working at the [deleted] as a public relations officer. While working there, I found out about some corruption in the management. The managers of the company were embezzling company funds.

In 1999, I gathered proof of the corruption and I sent this information to a relative of mine, whom [sic] was a student at [deleted] University. This information was then published in a student newsletter criticizing government policies.

On 22^nd of October 2000, a male friend, who was the secretary of one of the managers of the company, informed me that the manager was aware of my actions. This manager was a Colonel of the Sepah. He also gave me a copy of a letter he had found addressed to me which stated that I was being fired as I had not `upheld the Islamic values and rules'. This was an excuse they used in order to get rid of me.

Fearing for my life, I went into hiding...for about fifteen days.

During this time, my brother was trying to raise some funds for me to leave the country and try to bribe someone at the airport to ensure I had a safe passage. When my brother arranged for everything, I went to Tehran. I stayed in Tehran for a few days and then I fled the country.

When I spoke to my mother from Indonesia, I was informed that [our] house was searched on two different occasions by Security agents and that they were looking for me."

12 Another paragraph in the statement of the applicant, not set out in the Tribunal's statement, explained why the applicant feared persecution for reason of political opinion. It read as follows:

"As I exposed the corruption in a company which is related to the Mullas [sic]. The company is known as Sepah as all of the managers have served in the Sepah. By exposing such a company I am accused of being anti-government and having links to opposition groups for which the penalty is death."

"Sepah" refers to the Sepah Pasdaran (Islamic Revolutionary Guards Corps), a military force responsible for internal security and for upholding the revolutionary ideals of the theocratic regime which took control of Iran after the fall of the Shah.

13 On 2 April 2001 a migration agent who had obtained a degree in law in Iran, advised the Tribunal that on 19 March 2001 she had been appointed by the applicant as his adviser. In a submission dated 10 April 2001 ("the April submission"), forwarded in support of the applicant's application for review of the decision of the Minister, the adviser stated as follows:

"We believe that further development of the applicant's situation in his absence demonstrates that he was not wrong in fleeing the country. As the Iranian authorities gathered solid evidence against him that he had passed important information about the government corruption to the opposition groups [sic]. Therefore, they considered him as a traitor and spy who is liable to death penalty. Moreover, the arrest of the applicant's brother is strong evidence that his fear of persecution is objective and real." (Emphasis added).

14 On 20 April 2001 the Tribunal conducted a hearing, as part of the process of review. It is not clear where the hearing took place and, in particular, whether the applicant appeared in person before the Tribunal at the immigration detention centre at Curtin in north-west Australia. The Tribunal did not hold the hearing at its Sydney offices as stated in the notice of hearing given to the applicant. Neither the interpreter nor the applicant's adviser was present before the Tribunal. Each was at the Tribunal's premises in Sydney where, it seems, they participated in the proceeding by telephone link.

15 The case submitted to the Court by counsel for the applicant included a transcript of the hearing conducted by the Tribunal ("the transcript"). Counsel for the applicant submitted that perusal of the Tribunal's statement, and the transcript, revealed that the Tribunal wholly misunderstood significant aspects of the applicant's case and formed its judgment by taking into account irrelevant considerations or by failing to have regard to relevant considerations. Counsel for the applicant submitted that the Tribunal completely misunderstood, and misstated, the substance of the applicant's claims.

16 It is necessary to examine the transcript in some detail to deal with that submission. At the outset it may be said that the content of the transcript suggests that in the course of the hearing the translation into English of the applicant's statements was less than adequate on numerous occasions and it may be presumed that a like problem existed in the translation into Farsi of interrogatories or comments of the Tribunal. Obviously, any impediment to mutuality of understanding between the applicant and the Tribunal made the Tribunal's task more difficult and may have caused the Tribunal to be confused as to the applicant's claims. In a number of instances it appears that such confusion arose.

17 Towards the end of the hearing the Tribunal sought confirmation from the applicant that he had not been overborne by the proceeding conducted by the Tribunal. The applicant gave an affirmative response, but stated that, nonetheless, in the situation he found himself, he was under substantial mental pressure. The applicant stated that he was worried about the arrest of his brother and how his mother and sister in Iran were dealing with that circumstance.

18 Shortly thereafter, the Tribunal said:

"...you just mentioned your brother has been arrested but would you tell me about that?"

The response of the applicant, as interpreted, was as follows:

"When I was taken - not to isolation camp, to the isolation camp, that was when I could use a phone and I could make phone call and I talk to my mother but at beginning she didn't want to tell me, she wasn't telling me that my brother was arrested because my brother is actually the bread winner of the family as my father has passed away. He is the person in charge of the family and my mum didn't want to tell me because she was in the belief that I might return home if I heard that he was arrested and there was no-one to look after my mum and obviously that was dangerous for me and she didn't want me to do that so - and that was because when the authorities had gone to my house to search the house they got into an argument with my brother and they told my brother that: your brother is a spy and he has - and they have continued for it and my brother has resisted and, you know, has - they got into an argument and they have taken my brother instead of me. In Iran it is usual, it is common that when they are after someone and for political reasons they arrest a member of the family of that person until they can get that person, so they took my brother."

19 The Tribunal established that the conversation between the applicant and his mother took place "about two months" before the hearing, that is to say, approximately February/March 2001. The Tribunal then asked the applicant if he had told his adviser of his brother's arrest, stating that the Tribunal had not seen it mentioned in the April submission. The adviser then referred the Tribunal to the passage from the April submission, set out earlier in these reasons, which had informed the Tribunal of that claimed event.

20 The Tribunal's statement set out a narrative summary of the hearing it conducted. In that summary the Tribunal stated, erroneously, that it had asked the applicant to provide details of the claim made in the April submission that his brother had been arrested. The Tribunal stated that it "rejected" the applicant's claim. If that constituted a finding that the applicant's mother had concocted the account the applicant said he had been given by telephone, or that the applicant had concocted the statement that his mother had told him of the arrest of his brother, the reasons of the Tribunal for such a serious finding were, at best, fragile. The reasons provided by the Tribunal for rejecting the claimed event were that "any fears that the Applicant held in regard to arrest and execution were at most speculative" and that it was "implausible that the authorities would become interested in him after his departure when they had taken no action to find him" in the month that elapsed between leaving his employment and departing Iran. The first-mentioned reason does not provide a logical foundation for the Tribunal concluding that the claim that the brother had been arrested should be rejected and the latter reason was grounded on a finding as to the conduct of Iranian authorities in respect of which there was no material before the Tribunal to permit it to make such a finding.

21 The Tribunal reached the conclusion that the applicant's account was a fabrication, not because the applicant appeared to the Tribunal to be a liar and a dissembler but because the account he gave was, in the opinion of the Tribunal, "implausible". In the context of the Tribunal's reasons that word was used in the sense of lacking likelihood or probability. The ultimate finding of the Tribunal, that the applicant did not have a well-founded fear of persecution, depended entirely upon the Tribunal's opinion as to the "plausibility" of the claims of the applicant and not upon a finding, based on probative material, that the applicant was dishonest. Therefore, it was fundamental to the due performance by the Tribunal of its function that the Tribunal not misunderstand the claims made by the applicant, nor fail to consider relevant material in reaching an opinion as to the "plausibility" of those claims.

22 That part of the Tribunal's statement directed to explaining the conclusion that the applicant's account was fabricated read as follows:

"The Applicant claims to have fled his country, Iran, shortly after he found he was to be dismissed from his workplace.

He claimed that he believed the dismissal was the consequence of exposure of corruption of officials in his company.

He claimed that the dismissal, which was formally stated to be for breach of dress code, was the first step towards further action of arrest and possible execution.

The Applicant's case centres around his claim to have exposed corrupt officials in his work place.

There are two issues of concern in this regard.

Firstly the manner in which that claim has been made and the areas of inconsistency in that claim beg the question as to whether or not it is genuine.

Secondly, the question arises as to whether or not any adverse consequences of his exposure of the corruption bring his case within the ambit of the Convention.

The Applicant's Claim to have Exposed Corruption.

The Applicant stated that he had no political connections or associations and no member of his family had any either.

He was, by his own account, ideologically checked and passed that check and made no claim to have experienced any problems prior to October 2000.

He claims to fear persecution as a consequence of a single issue.

He claimed to have obtained copies of documents identifying officials in his workplace as being corrupt.

If this claim was genuine and it was the sole basis for his departing Iran I would have expected him to have the details, such as where it was exposed, when he collected the documents and when the articles were published, clear in his mind since he claimed that it all occurred within a few months of his interview for a protection visa on 13 January 2001.

However, I find there are significant inconsistencies in his account.

a. The Newspaper which he claimed printed the exposure of the corruption.

In his interview with a departmental officer shortly after his arrival the Applicant named the publication as a newspaper, `Resalat'.

At the Tribunal hearing this was the publication that was referred to many times throughout the hearing and which he confirmed was the paper which carried the details he released. At one time I put to him that I believed the publication was `Resalat' and he confirmed that it was.

It was only when I checked again very late in the hearing that the Applicant said that it was not the article in `Resalat' that was of concern.

I put my concern to him that I found it odd that he would name that newspaper when he arrived and then by his account towards the end of the hearing say it was of no concern, and fail to name the actual publication which he claimed was the one of concern.

Following the hearing I was concerned that there may have been some misunderstanding and listened to the complete hearing again.

Further to that I put this matter to him again under the terms of s 424A and in his response he made no claim or submission that there was any misunderstanding, only that the response he gave was because he was tired and stressed.

Even if he was tired and stressed at the first interview this does not explain why he would continue to identify it as the publication of concern throughout the hearing.

I am satisfied there was no misunderstanding and that the Applicant acknowledged that the paper was `Resalat' up until the point of the hearing as indicated in `claims and evidence'.

I am unable to make any determination as to why he made the reference to the newspaper `Resalat' rather than the student newsletter `Moqagemat'.

However, I find that if there was an issue of concern and the exposure which caused the problems to the Applicant was in one or the other of these papers he would have a clear and unambiguous recollection of which one it was.

I find that this inconsistency, together with the inconsistencies and other matters discussed below indicates that the account has been fabricated.

In any event, even if I did accept his amended account it would indicate that the exposure was not in a public newspaper but was limited to a student newsletter in one university."

23 The entry interview referred to by the Tribunal provided a brief, and it may be said ambiguous, account of the applicant's statements in that interview as to what occurred in Iran with the information he had gathered. As noted above, solicitors assisting the applicant made a more detailed record of his statements nine days after the entry interview. The relevant passage in the latter statement, which it may be noted was recited in the Tribunal's statement as set out in [11] above, read as follows:

"In 1999, I gathered proof of the corruption and I sent this information to a relative of mine, whom [sic] was a student at [deleted] University. This information was then published in a student newsletter criticising government policies." (Emphasis added.)

24 Five days after the applicant lodged his application for a visa he was interviewed by the officer delegated by the Minister to determine the application. That interview was recorded on tape and a copy of the tape given to the applicant. The delegate provided reasons for the decision that the applicant not be granted a visa and those reasons recited that the following account had been given by the applicant to the delegate:

"The applicant stated that he discovered that managers in the [deleted] Company were also shareholders of a private company that bought private land for the growing of [deleted]. He said the land was purchased at low prices.

The applicant said he accessed documents from top Managers rooms when they stayed at a guest house at the [deleted] company. The applicant said he copied the documents and then faxed them to his relative at the university where the documents where [sic] published in a university newsletter.

When asked why he risked taking and copying the documents the applicant said he was suspicious of the managers and he didn't like the regime.

The applicant then said that the manager of his company became aware of what the applicant had done and fired him. The applicant said he was handed a letter to say he was dismissed for code violations." [Emphasis added.]

25 The April submission referred to the words to which emphasis has been added in the foregoing passage and said that the applicant had made that statement in "both interviews". It may be assumed that the interviews referred to were the entry interview and the interview conducted by the delegate.

26 The April submission continued:

"He also maintained in his interviews that his motivation for his action was that he felt the responsibility to make his people aware of the existing corruption amongst the managers who were also unofficial affiliates of the government's suppressive machine. The applicant by passing information to the student group wanted to divulge the Islamic government. He believed it was his responsibility towards his fellow countrymen. His above act led to a series of investigations, which resulted in the resignation of Dr. Isa Kalantari who was the Minister for Agriculture.

We submit that it is not always famous people who are the cause of important information to be revealed. There are occasions that ordinary people like the applicant can unveil important secrets or scandals. The applicant believed that by passing this information to a student group, had a role in his country's future political progress. He knew his action might have dire subsequences [sic], he did it as a matter of his duty towards his country. He considered his act, as a political act opposing the dictatorship regime of the Islamic Republic of Iran."

27 It was clear that at the time the Tribunal conducted its hearing that the applicant had stated consistently that he had forwarded to a university student the information on corruption that he had gathered, and that the information had been published in a student, or university, newsletter. The notes of the entry interview were not inconsistent with that account.

28 In the course of the Tribunal hearing, which consisted of questions put to the applicant by the Tribunal and the applicant's responses thereto, the Tribunal said to the applicant that it was "surprised" that the applicant sent the information to a friend at the university and not to "a responsible member of the Majles". Insofar as that statement suggests that the Tribunal thought that the failure of the applicant to present his concerns to a member of the Iranian Parliament provided ground for the Tribunal to doubt the likelihood, or plausibility, of the applicant's claims, it may be thought that the premise relied upon by the Tribunal for that conclusion was unsound. The applicant responded that, in the absence of a political opposition, students at the universities had become the focus of dissent against the Iranian regime and were best placed to use the material.

29 Later the Tribunal returned to the point and the following exchange occurred:

"[TRIBUNAL:]...Now, I understand that the documents that you sent, the details of those documents were published in a newspaper - I'm just turning, interpreter, to the name of the newspaper. I will spell it for you, R-e-s-a-l-a-t.

[INTERPRETER:] R-e-s-a-l-a-t?

[TRIBUNAL:] Yes. That may be a mis-spelling because it's in the first- - -

[INTERPRETER:] Yeah, it's probably...The information what might be used on the students, both...and bits of the informations were reported in Rasalat. That's R-a-s-a-l-a-t.

[The spaces in this passage appear to be words in Farsi not transcribed by the transcription service].

[TRIBUNAL:] Okay. And that newspaper, is it a big newspaper?

[INTERPRETER:] Almost.

[TRIBUNAL:] What do you mean by, `almost'. Is it a paper that you can get anywhere in Iran?

[INTERPRETER:] Yes.

[TRIBUNAL:] Okay. And you don't happen to have a copy of that article that was in that paper, Rasalat?

[INTERPRETER:] In which newspaper, sorry?

[TRIBUNAL:] Rasalat.

[INTERPRETER:] You mean, now?

[TRIBUNAL:] Yes.

[INTERPRETER:] No, not now."

30 Putting to one side inadequacies in the interpreting into English of the applicant's words, the following extract from the transcript shows that notwithstanding, as set out above, that the Tribunal had confirmed that Rasalat was a national newspaper and, therefore, not a local student or university publication, the Tribunal, in the course of asking the applicant how it was claimed by him that the relevant Minister had resigned as a result of the disclosures made by the applicant, put to the applicant the misapprehension that "Rasalat" was the student newsletter. The Tribunal was corrected forthwith by the applicant.

"[TRIBUNAL:] Okay. The other thing is, in the [April] submission, it says what you did, in other words, in exposing this corruption, led to a series of investigations. What were those investigations?

[INTERPRETER:] Well, the exposers and they exposed them so - so much that body of students that it was proven that it was the Minister's fault - all this corruptions was the Minister's fault and therefore he was - he was put aside and what I meant, like, the investigations were that there was...and it was so clear and known by the students, they were - it was his fault.

[TRIBUNAL:] So there was no Government investigation, there was no actual official investigation, it was just the students exposure, is that what you're telling me?

[INTERPRETER:] Well it was so - the actual - the students was - it was just so - things what happened the students and their exposure it was so clear and was so nice and with the publishing the documents everything was just so known and so certain that it was obvious to them putting aside they would be - of their - you know, their body and honestly it couldn't be published in any newspapers because the newspapers that were to publish these kinds of things were closed by that time and after that I wasn't in there to know what else happened. I'm not sure even what happen after that but it was as far as I know.

[TRIBUNAL:] Okay. Now when, approximately, was this story put in the newspaper, Rasalat? Just approximately?

[INTERPRETER:] It was like early 1379 which is about March, April 2000 or a few months before that.

[TRIBUNAL:] Well that would be very hard because at the beginning of the hearing you told me that you obtained the documents in the year 1379 in April or May. Okay, roughly how long after you sent them to the University did it take before the story was published?

[INTERPRETER:] When you do this kind of a documents then you sort of wait for a while for it to be completed so it was about - it was about September, October 2000 that they were published in the students' newspaper.

[TRIBUNAL:] Right. And the students' newspaper, that is that paper called, Rasalat, is that correct?

[INTERPRETER:] No. The students' newspaper is different to the Rasalat newspaper.

[TRIBUNAL:] Okay. So, how long after the students' newspaper before it went into Rasalat?

[INTERPRETER:] It was - there were actually different - they would publish different things in the - in Rasalat and in the student's newspaper. They would sort of directly take their - the project and - and the company under question and they would...disagreement very freely with the student paper but in Rasalat they would sort of just pick on the fact and part that you know, wasn't so good about the project and it was about, I think, a few months before that.

[TRIBUNAL:] A few months before the student paper?

[INTERPRETER:] Then actually this...information that was published in the Rasalat newspaper in - in the Rasalat newspaper they were just saying that these planned projects is not really economy...it's not very good from the financial point of view for the country and - and just very gently it just puts their project under question but in the students' newspaper, it was just clearly it agreed with it.

[TRIBUNAL:] Okay. In the student newspaper, did it say that it was straight up corruption?

[INTERPRETER:] Yes. It clearly said that they were corruptions and it has - it refers to some documents and some information as well, yes."

[TRIBUNAL:] Okay. Now you obtained the documents around about April or May of last year?

[INTERPRETER:] Yes.

[TRIBUNAL:] Okay. And how long after that before you sent those papers to the University?

[INTERPRETER:] I used to try to send the documents off as quick as possible to get them away from myself as quick as possible and I did it sort of slowly as time went by, it was from May, April that I started, you know, having the documents. It lasted about 2 months - about 2 months after that.

[TRIBUNAL:] Okay. So around about April, May. So it probably would have been in the Persian month of Ti, is that correct, the end of June, beginning of July?

[INTERPRETER:] Yes, about the end of Ti which is sort of mid July.

[TRIBUNAL:] Mid July. Okay. Now it seems to me that since one of the buildings collapsed before it even got up and people were killed, there were people working there who didn't know their job properly, that that information would have been publicly known. You can't hide a building falling down. And so from the way you described it the Rasalat's article basically just said, this plan or this project is not economical and it's not very good. That would not indicate that they had documents - secret documents which you have provided?

[INTERPRETER:] The information that was - be published in Rasalat newspaper were different to the ones that I was talking about. The Rasalat they were just giving opinions, their point of view, the negative point of view towards the construction or the ongoing plan of this project and they were just saying that this is not good. This is not good - you know, it's not a good plan, it shouldn't go ahead and the building - the construction of the factory, it was done in the country side or the desert side around the city. It wasn't in the city or somewhere that everyone could see and the people - everyone would know about it. I say it because I saw it with my own eyes, I saw it collapsing and I know that the reason it happened was for - was for that reason that the people who were doing it didn't know - they don't know what they were doing and were familiar with what they were supposed to do.

[TRIBUNAL:] My point was that the way you have described Rasalat's article today, it wouldn't indicate that they had secret information from a worker at the [deleted] company?

[INTERPRETER:] Yes, they are different. Rasalat tells...this plan has just been - this is not a good plan. They didn't have any documents or any proof or anything, it was just different.

[TRIBUNAL:] So this rather surprises me that when you first came you said to the Immigration Officer:

The information was then published in the newspaper, a newspaper called Rasalat.

[INTERPRETER:] No. It was the student newspaper that published information. I - the Rasalat newspaper had just criticised the plan and I...said that it - that it just points about the criticism of the plan and it had nothing to do with the workers condition. The Rasalat just had nothing to do with the information. I never gave the information to Rasalat newspaper, I gave it to the students' newspaper." [Emphasis added.]

The Tribunal then asked the applicant the name of the student newspaper and that was provided.

31 After the hearing the Tribunal sent the following communication to the applicant, presumably considering it was necessary to do so pursuant to s 424A of the Act:

"The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection Visa.

The information is as follows:

Shortly after arrival in Australia you were interviewed by an officer from the department of Immigration. A record of that interview signed and dated 30 December 2000 is held on the department's file. In that interview you claimed that your concerns were partly based on an article in a Newspaper called `Resalat' [sic] and the article was based on material you provided to university students. However, at the Tribunal hearing you stated, after some time, that the material in `Resalat' [sic] was not related to the material you claim to have provided and you claimed that material was published by students in the University newsletter.

This information is relevant because Since [sic] you have claimed that the publishing of this media article was the basis for the interest you claim the authorities have in you then the Tribunal is of the opinion that you would have referred to the actual newspaper which carried the article rather than one which did not rely on the material you claim to have provided.

This could lead the Tribunal to conclude that you have fabricated this account.

You are invited to comment on this information." [Emphasis in original.]

32 It is significant that in the above letter the Tribunal referred to several statements said to have been made by the applicant in the entry interview, namely, that the applicant's concerns were partly based on an article published in the newspaper Rasalat and, second, that the newspaper article was based on material provided by the applicant to university students. Those statements were not recorded in the notes made by the interviewing officer. Perhaps the Tribunal referred to the tape recording of the entry interview, or transcript thereof. It is not stated in the material before the Court that the interview was recorded on tape but the printed form on which a summary of the interview was written did state that: "The tape of this...interview may be disclosed to language experts". It may be thought that those further statements referred to by the Tribunal tended to support the applicant's case and resolved any ambiguity latent in the written notes of the entry interview recorded by the interviewing officer.

33 The applicant's adviser forwarded the following response to the Tribunal's request, as provided by the applicant:

"When I reached the Australian shore with other asylum seekers, we were told by the Australian officials, that we were under their arrest. We then were transferred to Darwin where we were surrounded by guards and officials. In Darwin, we were photographed and numbered. Then we were transferred by a horrifying midnight flight to Curtin detention centre. Again, we were confronted with Australian guards and found ourselves behind the terrifying barbed wired Curtin camp. About two or three days later, again we were numbered photographed and finger printed. Since we arrived we were only called by the number with which we were allocated upon our arrival. Under all the above conditions, I felt that everything that was happening to me was an indication of the possibility of being sent back to the Iranian authorities that were our persecutors. With all the anxiety, fear and intimidation that I deeply felt at that time, I was unable to explain myself clearly in the first interview. However, in the tribunal hearing under the oath of Koran, I explained the whole reality and to the best of my knowledge. I therefore, request the Tribunal by considering all the above and by applying `benefit of the doubt' to consider my explanation in the Tribunal hearing as the whole truth. I also wish to mention that, the information I provided to the student group might have triggered the attention of the editors of Resalat. Although, Resalat newspaper made some critics [sic] of the [deleted] project, its critics [sic] were not very important."

34 The pertinent part of the Tribunal's statement set out earlier that is relevant to this issue read as follows:

"In his interview with a departmental officer shortly after his arrival the Applicant named the publication as a newspaper, `Resalat'.

At the Tribunal hearing this was the publication that was referred to many times throughout the hearing and which he confirmed was the paper which carried the details he released. At one time I put to him that I believed the publication was `Resalat' and he confirmed that it was.

It was only when I checked again very late in the hearing that the Applicant said that it was not the article in `Resalat' that was of concern.

I put my concern to him that I found it odd that he would name that newspaper when he arrived and then by his account towards the end of the hearing say it was of no concern, and fail to name the actual publication which he claimed was the one of concern."

35 The assertions made by the Tribunal in the foregoing passage are not supported by the transcript, and distort the applicant's claims.

36 At all times the applicant stated that he supplied to a student the information he obtained and that the information had been published in a student, or university, newsletter. At no time did the applicant say that the student or university publication was the newspaper "Rasalat". To the extent that the notes recorded at the entry interview referred to the publication of information in "Rasalat", that statement was not inconsistent with the applicant's claims at the Tribunal hearing that an article, albeit one only mildly critical of circumstances that concerned parties he sought to expose, had appeared in that newspaper. On the applicant's account that article was but one part of the circumstances the applicant claimed gave him cause to fear he had become an object for persecution.

37 Each of the foregoing assertions involves error on the part of the Tribunal and it is appropriate to deal with them in seriatim:

(a) "At the Tribunal hearing this was the publication that was referred to many times throughout the hearing and which he confirmed was the paper which carried the details he released."

38 The transcript shows that the publication was not "referred to many times throughout the hearing" as asserted, and at no time did the applicant confirm that "Rasalat" was the paper which "carried the details he released". The first mention of a "publication" is on p 13 (of 31 pages) of the transcript and the entire discussion of the publication in "Rasalat" was part of a discrete segment at pp 13 - 17 of the transcript.

39 (b) "At one time I put to him that I believed the publication was `Resalat' and he

confirmed that it was."

That assertion by the Tribunal is plainly wrong. As shown in the extracts from the transcript set out above, the Tribunal put to the applicant that it understood that the details of the documents the applicant sent were published in the newspaper "Rasalat" to which the applicant responded: "The information what might be used on the students, both...and bits of the informations were reported in `Rasalat'." Making allowance for the obviously incomplete interpreting of the applicant's response, it is apparent that the applicant was stating that different publications were made by the students and by "Rasalat". The applicant appeared to be saying that there was information about the matter in both the student newsletter and in "Rasalat". The applicant referred to "Rasalat" in response to the Tribunal raising the name of the newspaper. Shortly thereafter the applicant stated in clear terms that the relevant material had been published in the student newsletter.

40 (c) "It was only when I checked again very late in the hearing that the Applicant

said that it was not the article in `Rasalat' that was of concern."

That is an inaccurate account of what occurred. The Tribunal discussed "Rasalat" with the applicant and received responses to the Tribunal's questions in a discrete segment of the hearing, as stated above, at pp 13-17 of the transcript. The Tribunal did not return to the issue. In that part of the hearing the Tribunal set out its misunderstanding that the student newsletter was called "Rasalat" and asked if that was correct. The applicant promptly informed the Tribunal that the newspaper "Rasalat" and the student newsletter were different publications and explained further that what had appeared in "Rasalat" was a less critical account of the state of affairs the applicant had sought to disclose by forwarding material to students at the university. What the applicant stated at the hearing was consistent with the statement he provided with his application for a visa, with his interview with the delegate, and with the April submission.

41 (d) "I put my concern to him that I found it odd that he would name that newspaper when he arrived and then by his account towards the end of the hearing say it was of no concern, and fail to name the actual publication which he claimed was the one of concern."

As can be seen in the extract from the transcript set out above, such a "concern" was not put to the applicant at the hearing. The only exchange between the applicant and the Tribunal in that regard occurred at the end of the segment recorded at pp 13-17 of the transcript as follows:

"[TRIBUNAL:] So this rather surprises me that when you first came you said to the Immigration Officer:

The information was then published in the newspaper, a newspaper called Rasalat.

[INTERPRETER:] No. It was the student newspaper that published information. I - the Rasalat newspaper had just criticised the plan and I...said that it - that it just points about the criticism of the plan and it had nothing to do with the workers condition. The Rasalat just had nothing to do with the information. I never gave the information to Rasalat newspaper, I gave it to the students' newspaper."

42 Again, deficiencies in the quality of the interpreting into English of the applicant's statements are manifest but it is apparent that the applicant was repeating what he had said to the Tribunal already about the role of "Rasalat". In the absence of any reference to material to the contrary in the tape recorded interviews, it may be assumed that nothing therein was inconsistent with the applicant's statements to the Tribunal. In any event, in no circumstance can it be said that the applicant was providing a new "account towards the end of the hearing". There was no gap in the proceeding in the discussion of this matter, nor was there a purported introduction of a revised account by the applicant at the "end of the hearing". The statements of the applicant were all made at the time the Tribunal raised the issues and, it may be said, in the early part of the hearing. Furthermore, what the applicant said to the Tribunal, in response to questions put by the Tribunal, was consistent with statements made by the applicant before the hearing.

43 The transcript shows the Tribunal to have been confused and that such confusion carried through into the decision-making process carried out by the Tribunal. As submitted by counsel for the applicant, the applicant consistently described the publication which had published the information he had gathered as a student newsletter and the Tribunal, not the applicant, raised the name of the newspaper "Rasalat" in the course of the Tribunal hearing. The applicant explained to the Tribunal that "Rasalat" dealt with certain issues relating to or surrounding events concerned with the details he had forwarded to the students and made clear the distinction between the newspaper "Rasalat" and the student newsletter. It is most likely that the confusion under which the Tribunal laboured arose partly from the Tribunal's incorrect assumptions and partly from the inadequate standard of interpreting in the Tribunal proceeding. It seems that none of the confusing passages of translation was either clarified or questioned by the Tribunal.

44 It has been shown by the applicant that by reason of fundamental misunderstandings, the Tribunal was diverted from the due performance of the function vested in it under the Act and that the Tribunal did not consider material that it was bound to consider in determining the applicant's application. It follows that ground for review of the Tribunal's decision is established under s 476(1)(b) (absence of jurisdiction); s 476(1)(c) (absence of authority); s 476(1)(e) (error of law by misinterpreting the relevant law or by failing to apply the relevant law correctly). (See:  Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 per Gleeson CJ at [10], McHugh, Gummow, Hayne JJ at [76]-[85]).

45 If properly instructed on the matters it misunderstood and found to be implausible, the Tribunal may have found those matters to be true, or that it could not say they were not true, and that may have caused the Tribunal to reach a different conclusion on other matters, in particular, on the substance of the applicant's claim that his fear of persecution was based on a real risk that persecution may occur. (See: W360/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 211 per Lee , Finkelstein JJ at [3].)

46 Before amendment at the hearing, the application for review also sought to rely upon a ground arising under s 476(1)(a) ("failure of the Tribunal to observe a required procedure"). Although counsel for the applicant did not formally abandon the ground, it was overtaken in substance by the amended grounds and it is unnecessary to deal with it.

47 Similarly, the applicant having succeeded on other grounds it is unnecessary to deal with the further submissions of counsel which contended that ground for review also arose under s 476(1)(g) ("no evidence or other material to justify the making of the decision").

48 Although not an issue the subject of submissions, the treatment by the Tribunal of the applicant's claims to fear persecution for reason of political opinion as set out in [12] above, may have raised for consideration whether the relevant law had been properly interpreted or properly applied to the facts (s 476(1)(e)).

49 In its statement, the Tribunal said as follows:

"...even if the dismissal was because of his exposure of their corruption this motivation would not convert their action in dismissing him into persecution within the Convention, not even in part."

50 Whether that conclusion was grounded on a correct interpretation of the relevant law may have been a question for further argument. (See: W68/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 148.)

51 The application for review must be granted, the claim of the Tribunal set aside and the matter remitted to the Tribunal for redetermination.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee.

Associate:

Dated: 6 August 2002

Counsel for the Applicant:	G R Donaldson (pro bono publico)
Counsel for the Respondent:	A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 December 2001, 5 February 2002
Date of Further Submissions:	14 March 2002
Date of Judgment:	6 August 2002