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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - nationality of the applicant - procedural fairness - whether the applicant given sufficient time to produce documents - whether the RRT breached legal professional privilege - whether the RRT took irrelevant material and failed to consider relevant material - no reviewable error found.

WAAF v Minister for Immigration [2003] FMCA 36 (16 April 2003)

WAAF v Minister for Immigration [2003] FMCA 36 (16 April 2003)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAAF v MINISTER FOR IMMIGRATION
[2003] FMCA 36



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - nationality of the applicant - procedural fairness - whether the applicant given sufficient time to produce documents - whether the RRT breached legal professional privilege - whether the RRT took irrelevant material and failed to consider relevant material - no reviewable error found.



Federal Court Rules

Migration Act 1958 (Cth), s.474

Re Minister for Immigration; ex parte Lam [2003] HCA 6

Plaintiff S157 of 2002 v Commonwealth [2003] HCA 2

Applicant:
WAAF



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ36 of 2002



Delivered on:


16 April 2003



Delivered at:


Sydney, via videolink to Perth



Hearing dates:


11 April 2002

18 February 2003



Judgment of:


Driver FM



REPRESENTATION

Counsel for the Applicant:


Ms L B Price, appeared pro bono publico



Counsel for the Respondent:


Mr P Macliver



Solicitors for the Respondent:


Australian Government Solicitor


ORDERS

(1) The application is dismissed.

THE COURT RECOMMENDS THAT

(1) The Minister consider substituting a more favourable decision for the decision of the Refugee Review Tribunal.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ36 of 2003

WAAF


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction and background

1. This is an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 21 September 2001 and notified to the applicant on the same day. The RRT affirmed a decision of a delegate of the respondent not to grant the applicant a protection visa. The central issue in the case is the nationality of the applicant. The applicant says that he is an Iraqi. The RRT decided that he is Iranian.

2. The matter was initially heard by me on 11 April 2002 in Perth. At that time the applicant appeared by video on his own behalf from the Port Hedland Detention Centre. At that time I became concerned that a photocopied document appeared on the court file which was not referred to in the decision of the RRT and which could have an impact on the resolution of the question of nationality. The document was in Farsi and an oral translation by the interpreter at the hearing on 11 April 2002 established that it purported to be a letter from the Mayor of Ahwaz confirming the Iraqi nationality of the applicant. I adjourned the hearing and ordered the applicant to provide the original of the letter and to produce a statutory declaration setting out when he first asked for a copy of the document, when he received it, whether he gave it to his legal advisers who represented him before the RRT and whether it was made available to the RRT. I also made an order under Order 80 of the Federal Court Rules to facilitate the applicant obtaining legal representation for the purposes of proceedings in this Court.

3. The applicant prepared a statutory declaration in accordance with my orders on 4 June 2002. That forms an annexure to the affidavit of Joanne Andretich, filed on 4 November 2002. Also attached to that affidavit is the original untranslated letter the subject of my orders.

4. The proceedings were adjourned by consent until 18 February 2003 to facilitate the applicant obtaining pro bono representation. The applicant was represented at trial by Ms Price, who appeared pro bono. It is appropriate that I place on record the Court's appreciation for the agreement by Ms Price to appear for the applicant on this basis in the interests of the fair and efficient administration of justice.

5. At trial, Ms Price relied upon an amended application, filed in court on 18 February 2003, and an affidavit by herself and annexures filed on the same day. She also relied upon the affidavit of Ms Andretich. The application asserts that the RRT failed to accord the applicant procedural fairness and made jurisdictional errors. It is asserted that the RRT:

a) failed to consider the applicant's request made shortly after the hearing for a reasonable extension of time to produce documents, being documents which the applicant had represented to the RRT would assist it in the determination of his application;

b) made a critical finding of fact that the applicant was not an Iraqi national when documentary evidence, which the applicant was in the course of obtaining and wanted to put before the Tribunal to establish that he was a national of Iraq and not an Iranian national, was available;

c) received, questioned the applicant about and assessed a document that was subject to legal professional privilege when that privilege had never been waived by the applicant;

d) took into account irrelevant material being the claim of the witness that he had disclosed his position on arrival in Australia;

e) failed to consider the case put by the applicant that he was an Iraqi national deported to Iran from Iraq and persecuted in Iran, and had signed a document on his departure from Iran denying any right to return to Iran.

6. The application seeks a declaration and prerogative relief plus costs.

7. On 15 April 2003 I received by facsimile from Ms Price written submissions in reply to further submissions made by Mr Macliver on 21 March 2003. Those submissions by Ms Price were received very late but I have sought to take them into account, noting that Mr Macliver's further written submissions were also late. However, at paragraphs 27 to 30 of her submissions in reply Ms Price seeks to further amend the application for review, by adding a ground based upon a claim of persecution in Iran by reason of membership of a particular social group. I have not considered those submissions because no further amended application has been filed; the issue is new, not in response to Mr Macliver's submissions; the issue is raised the day before the day fixed for judgment to be given, in a matter that was first heard in this Court over a year ago; and the respondent has had no opportunity to respond to it.

8. The following background facts are material. The applicant arrived in Australia by boat as an unlawful non citizen on 22 December 2000. He was initially interviewed by an officer of the Minister's Department on 29 December 2001. At that time he identified himself as a citizen of Iran, born in Ahwaz. The applicant claimed to be of Arab ethnicity and to speak both Farsi and Arabic. He also claimed that his mother was deceased and that he was looking for his two younger brothers, and that for this reason he had been given an exemption from military service. He gave as his reason for leaving Iran pressure to support his two brothers.

9. The applicant lodged an application for a protection visa on 4 June 2001. In this, he identified himself by a different name and said that he was born in Karbala, Iraq, and that he had lived there until May 1981 when his family was forced to go to Iran. The applicant claimed that he was issued with a "green card" by the Iranian authorities. This is a form of identity card issued by the Iranian authorities to foreigners. The applicant asserted that a change to Iranian law had meant that he was required to leave Iran by March 2001 and that he feared being sent back to Iraq because of the regime of Saddam Hussein. He feared that having been previously deported from Iraq he would be persecuted by the Iraqi regime.

10. A delegate of the Minister refused to grant the applicant a protection visa on 27 June 2001. The delegate found that the applicant was born in Iran and was a citizen of that country and that he did not have a well founded fear of persecution in relation to Iran. The applicant applied to the RRT on 2 July 2001. By a letter dated 27 August 2001, the RRT advised the applicant that, subject to any comments which he might make, the RRT had information which would be the reason, or part of the reason, for deciding that he was not entitled to a protection visa. The RRT referred to the information given by the applicant at his initial interview on 29 December 2000, and also referred to a letter addressed to the applicant's migration agent, which was apparently found in his possessions in the detention centre which made no mention of Iraq or his claim of Iraqi citizenship. The RRT asserted that this information was relevant as it went to the credibility of his later claim to be an Iraqi national. The RRT invited the applicant to comment on this information at the RRT hearing on 29 August 2001.

11. The applicant gave evidence at the RRT hearing on that day. He also called a witness in support. The applicant's advisers also provided a submission to the RRT on 5 September 2001.

12. The RRT made its decision on 21 September 2001, affirming the delegate's decision. The RRT concluded that it was not satisfied that the applicant was a national of Iraq as he had claimed and found that he was a national of Iran (court book, pages 104-106). The presiding member decided not to take into account the letter to the migration agent found in the applicant's property box at the detention centre, although the presiding member asserted that he could have taken it into account should he have wanted to. The presiding member decided that, even in the absence of that document, there were inconsistencies in the applicant's own evidence that prevented the RRT concluding that he was an Iraqi national. The RRT concluded that the initial statement made by the applicant in the arrival interview about his Iranian citizenship was accurate and that his later inconsistent claims to be an Iraqi national were fabrications to give himself the profile of a refugee (court book, page 106).

Relevant law

13. In Plaintiff S157/2002 v Commonwealth [2003] HCA 2 the High Court decided that the privative clause in s.474 of the Migration Act 1958 (Cth) ("the Migration Act") would not apply if the RRT exceeded its jurisdiction. The High Court found that procedural unfairness constitutes jurisdictional error. Thus, in addition to circumstances where the so called Hickman provisos are not satisfied, if an applicant can establish procedural unfairness the privative clause will not protect the decision of the RRT. In supplementary written submissions filed on 21 March 2003 Mr Macliver, for the Minister, pointed out that it cannot be assumed that any procedural unfairness will constitute a jurisdictional error. A majority of the High Court noted this at [77] in relation to breaches of statutory procedural obligations.

Consideration and findings

14. Ms Price submits that the decision of the RRT is unsafe and tainted by procedural unfairness on account of the particulars set out in the amended application. The first of those particulars is that the RRT failed to consider the applicant's request made shortly after the hearing for a reasonable extension of time to produce documents, being documents which the applicant had represented to the RRT would assist it in the determination of his application. At page 88 of the court book is a facsimile request for an extension of time of 15 days sent to the RRT by the solicitors for the applicant on 5 September 2001. In that facsimile the solicitors stated that the applicant was expecting correspondence from both Canberra and Iran which, he instructed, would be of assistance. The next document in the court book, at page 89, is a facsimile reply from the RRT in which the case officer sought information about what the correspondence was and how it would be of assistance. It seems that no further communication passed between the solicitors and the RRT. No further action was therefore taken on the request for an extension of time. The decision of the RRT was made on 21 September 2001 and communicated to the applicant on the same day.

15. Mr Macliver points out that although the request for an extension of time was not expressly granted, there was a delay of more than 15 days between the request and the making of the RRT decision, so that, in effect, the applicant got the extension of time that had been sought. In addition, it is clear that no additional documents were produced to the RRT prior to the decision being made on 21 September 2001. The applicant was not in a position to provide any additional documents to the RRT within the 15 days that had been sought. It, may be, as is submitted by Ms Price in her written submissions in reply, that the applicant had difficulty in receiving correspondence, especially facsimile correspondence, in the detention centre. However, that is not the fault of the RRT.

16. In order for there to be a finding of procedural unfairness in law, there must be procedural unfairness in fact: Re Minister for Immigration; ex parte Lam [2003] HCA 6. I find that there was no procedural unfairness in the way in which the RRT dealt with the extension of time request.

17. In addition to the particulars of procedural unfairness provided in the application, Ms Price submitted at trial and in her written submissions in reply that the applicant was given an inadequate time to respond to a s.424A notice sent to him on 27 August 2001 (court book, page 82). That notice was sent only two days before the hearing before the RRT. Mr Macliver submits that the applicant was able to respond to that notice not only at the RRT hearing, but also in written submissions after the RRT hearing and that approximately one month was available to respond. In addition, Mr Macliver has pointed out that the issue of nationality was known to be crucial to the outcome of the applicant's application to the RRT, following the decision of the delegate. I accept that submission. Although the time given to the applicant to respond to the s.424A notice was short, it was adequate in the circumstances.

18. Thirdly, the application asserts that the RRT made a critical finding of fact that the applicant was not an Iraqi national when documentary evidence, which the applicant was in the course of obtaining and wanted to put before the RRT to establish that he was a national of Iraq and not an Iranian national, was available. The critical finding of fact made by the RRT appears on page 104 of the court book. The presiding member stated:

I am not satisfied that the applicant is an Iraqi national as he has claimed. In relation to this, I consider it significant that when he arrived in Australia the applicant identified himself as an Iranian citizen, stated that he was born in Ahvaz in Iran, stated that he used a genuine Iranian passport en route to Australia and that he had a document exempting him from military service in Iran because he had been responsible for the care of his brothers.

19. The RRT rejected the explanation offered by the applicant about the change in his claims (advice from other asylum seekers and fear of being returned to Iraq leading to an initial false claim) and rejected the subsequent inconsistent claims made by the applicant. It is true that the applicant had put the RRT on notice, through his solicitors, that further documentation was anticipated which might assist the RRT. However, neither the applicant nor the solicitors responded to the request from the RRT case officer for information about what the documents were or how they would assist. There was nothing before the RRT to indicate that further documents might become available to help specifically in determining the nationality of the applicant. It appears from the applicant's statutory declaration and the affidavit of Ms Price that the applicant received a copy of the purported letter from the Mayor of Ahvaz within days of the RRT decision. A translation of that letter, provided by Ms Price, shows that the letter purports to be a statement from the Mayor confirming that the applicant is a national of Iraq and that he was required to surrender his Iranian green card when he left Iran. In addition, since then, the applicant has provided to Ms Price the following:

a) a card purporting to come from the Office of Migrants and Foreign National Affairs, Iran, which has been translated and which purports to be an identity card for the applicant's father identifying him as an Iraqi national born in Karbila;

b) a purported identity card issued in Iraq which has been translated and purports to show that the applicant's father was identified by the Iraqi authorities as an Iraqi national;

c) a certificate in support from a mosque in Iran;

d) an extract from a passport; and

e) an identity document from an organisation in Germany.

20. All of these materials on their face support the proposition by the applicant that he is an Iraqi, not an Iranian. He comes from an area close to the border between Iran and Iraq and the area has historically been disputed between the two countries. The applicant asserts that he was born in what is now Iraq but that at the start of the war between Iran and Iraq he and the rest of his family were deported from Iraq to Iran. People of Arab ethnicity live on both sides of the border and nationality is sometimes difficult to determine. While all of the documents referred to provide support for the applicant's claim of Iraqi nationality, none of them were put before the RRT and none could be said to be available before the RRT made its decision. The failure on the part of the applicant and his legal advisers to give any information to the RRT about what documents might become available means that the RRT was left in the dark. The decision by the presiding member on the nationality of the applicant may well be factually wrong. However, in the light of the inconsistency in the statements about nationality made by the applicant, the presiding member was entitled to draw the conclusions that he did on the material that was available to the RRT at the time.

21. In her written submissions in reply Ms Price submits that the RRT wrongly rejected the prima facie evidence of the applicant's Iraqi nationality that was available at the time of the RRT hearing. However, the evidence available at that time was flimsy and the RRT was entitled to make findings on the credibility and weight of that evidence.

22. Next, the application asserts that the RRT received, and questioned the applicant about, and assessed, a document that was subject to legal professional privilege when that privilege had not been waived by the applicant. This aspect is dealt with in the RRT decision at page 106 of the court book. The presiding member said this:

I note the submissions made by Ms Power in which she suggests that I should not take into account the letter in Farsi found in the applicant's property box. I do not accept Ms Power's assertion that I am not entitled to take this material into account. In my view, the material referred to is evidence about which I was entitled to question the applicant and upon which I can place weight in making a decision. However, in the circumstances of this case, I do not consider it necessary to place any weight on the material. The problems with the applicant's own evidence are such that I cannot be satisfied that he is an Iraqi national.

23. The RRT is not bound by the rules of evidence but, in my view, applicants are entitled to legal professional privilege on the basis of procedural fairness. I was told at trial by Ms Price that Ms Power was the advocate who appeared on behalf of the applicant at the RRT hearing and that the letter referred to was a confidential communication between the applicant and his legal adviser. The letter had been taken from a property box in the detention centre without the consent of the applicant and, if it was privileged, the RRT was not, in my view, entitled to receive it as evidence. Ms Price told me from the bar table that she had listened to the audio tape of the RRT hearing and the subject of the letter led to an acrimonious exchange between the presiding member and Ms Power. It seems that the presiding member formed an adverse view on the competence and professionalism of Ms Power and threatened to report her to her principals. Ms Price deposes as to the relevant facts in paragraph 10 of her affidavit. Ms Price draws an implication from those facts that a fair minded observer would have cause to doubt that the presiding member would bring and unprejudiced mind to bear upon the case before the RRT.

24. In an affidavit filed on behalf of the Minister on 21 March 2003, Rachael Lousie Stitchnoth of the Australian Government Colicitor annexes a transcription of the relevant part of the audio tape of the RRT hearing. In her affidavit sworn on 14 April 2003 Ms Price provides some corrections to that transcript, which I accept. The discussion between the presiding member and Ms Power appears confused and at one point Ms Power appears to concede that the applicant had waived any privilege in the letter. She ended up basing her objection to the receipt of the letter into evidence on alleged RRT guidelines that were not then available or known to the presiding member. In his supplementary written submissions Mr Macliver states that the letter was written to a migration agent who is not known to be an admitted legal practitioner. In the circumstances I am not satisfied that the letter in question was subject to legal professional privilege.

25. An untranslated copy of the letter in question appears in the court book with a short explanatory document at page 45. In my view, based upon the explanatory document, the letter is irrelevant to the question of the applicant's nationality and, quite apart from any question of legal professional privilege, should not have been received by the presiding member as evidence on that question. The letter contains criticisms of the Iranian regime and the RRT seemed to place significance on the fact that the letter did not mention any claim of Iraqi nationality. I see no significance in that omission from the letter. The applicant admitted having lived in Iran for an extended period and was well placed to venture opinions on the conduct of the Iranian authorities. He had elsewhere made claims of Iraqi nationality and could not be expected to mention those claims in every letter he wrote to his advisers.

26. However, no weight was placed on the letter by the presiding member. Although the letter should not have been received as evidence it did not have an impact on the outcome of the case. I find that the applicant suffered no disadvantage from the reception of the letter as evidence. In addition, although I accept that there was a hostile exchange between the presiding member and Ms Power about the letter, that exchange does not of itself establish a reasonable apprehension of bias. It is not uncommon for judicial officers and presiding tribunal members to have exchanges with lawyers representing parties which may at times become heated. There may be good reasons for a presiding member to criticise a lawyer. The exchange between the presiding member and Ms Power would not, in my view, lead a fair minded observer to conclude that the presiding member would not bring an unprejudiced mind to bear upon the case.

27. It is next asserted that the RRT took into account irrelevant material, being the claim of a witness for the applicant that the witness had disclosed his position on arrival in Australia. The presiding member said this (court book, page 105):

I note that according to the witness, when he was interviewed upon arrival in Australia, he told the Department that he had been a green card holder in Iran. In my view, the fact that a person whom the applicant had known for a number of years in Iran and with whom he had travelled to Australia disclosed his circumstances to the Department during the entry interview makes the applicant's claimed failure to do so even more inexplicable.

28. In my view, it was not an irrelevant consideration to note that a person who lived in Iran as a foreign national with a green card could be expected to disclose that information at the arrival interview and that a witness called on behalf of the applicant had done that. I accept, in that regard, the supplementary written submissions of Mr Macliver, at paragraph 19.

29. Finally, the application asserts that the RRT failed to consider the case put by the applicant that he was an Iraqi national deported to Iran and from Iraq, persecuted in Iran and had signed a document on his departure from Iran denying any right to return to Iran. I reject that contention. It is plain from the RRT decision that the applicant's claims were considered. They were, however, not believed.

30. Ms Price also submits that the decision of the RRT is unsafe on the question of nationality. I accept that that decision could well be wrong, in the light of the additional documentary material produced by the applicant since the RRT decision. However, that possibility cannot support a contention that the RRT has made an error of law going to jurisdiction. The finding on nationality made by the RRT was reasonably open to it at the time it was made on the basis of the material that was available. I conclude that the applicant has failed to satisfy me that the RRT proceedings are vitiated by jurisdictional error. In addition, the Hickman provisos are plainly satisfied. The RRT decision is therefore protected from judicial review by s.474 of the Migration Act. Accordingly, I will dismiss the application.

31. I remain concerned that the decision of the RRT on the critical issue of nationality could well be wrong. The additional documentary material produced by the applicant should be properly assessed. I will, therefore, recommend to the Minister that he consider substituting a more favourable decision for that of the RRT.

32. I will hear the parties as to costs.

I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 16 April 2003
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