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MIGRATION - Review of RRT decision - protection visa - well-founded fear of persecution - whether the Tribunal acted in good faith - whether a later Tribunal was influenced by the decision of an earlier Tribunal - whether the cumulative effect of any errors leads to a finding of actual bias - whether the Tribunal acted with a closed mind and prejudice - no reviewable error found.

WAIJ v Minister for Immigration [2002] FMCA 335 (23 December 2002)

WAIJ v Minister for Immigration [2002] FMCA 335 (23 December 2002)
Last Updated: 28 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIJ v MINISTER FOR IMMIGRATION
[2002] FMCA 335



MIGRATION - Review of RRT decision - protection visa - well-founded fear of persecution - whether the Tribunal acted in good faith - whether a later Tribunal was influenced by the decision of an earlier Tribunal - whether the cumulative effect of any errors leads to a finding of actual bias - whether the Tribunal acted with a closed mind and prejudice - no reviewable error found.



Migration Act 1958 (Cth) s.476

NAAV v Minister for Immigration [2002] FCAFC 228

Gamaethige v Minister for Immigration [2001] FCA 565

Applicant:
WAIJ



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 205 of 2002



Delivered on:


23 December 2002



Delivered at:


Sydney



Hearing Date:


25 November 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr M Howard



Counsel for the Respondent:


Mr A Jenshel



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant to pay respondent's costs in the sum of $4,000.00.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

PERTH


WZ 205 of 2002

WAIJ


Applicant

And

MINISTER FOR IMMIGRATION &, MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent

REASONS FOR JUDGMENT

1. This is an application by an Iranian woman and her children who seek protection under the obligations which the Australian Government voluntarily acceded to by ratifying the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. The applicant arrived in Australia on the 1st October 2000 on board a vessel. On the 1st March 2001 the applicants lodged an application for protection (Class XA) visas with the Department of Immigration, Multicultural & Indigenous Affairs under the Migration Act 1958 (Cth). On 21 March 2001 a delegate of the Minister refused to grant a protection (Class XA) visa and that decision was subject to review by the Refugee Review Tribunal which affirmed the delegate's decision on the 21 August 2001. The applicant sought review of the Tribunal's decision by the Federal Court and on the 4 April 2002 that court, by consent, set-aside the Tribunal's decision and remitted the matter to a Tribunal differently constituted to be determined according to law.

2. In these reasons the Tribunal which affirmed the delegate's decision on the 21 August 2001 will be referred to as the first Tribunal and the Tribunal, which made the same decision on the 29 July 2002, will be referred to as the second Tribunal. The applicants come to this court seeking review of the second Tribunal's decision.

3. The claim for refugee status was made upon the basis of the mother's well-founded fear of persecution for Convention reasons. The Tribunal accepted that the daughters' application succeeded or failed on the basis of the decision made in respect of their mother.

4. The applicant was represented at the hearing before me. By consent of the respondent amended grounds of review were filed. The first ground of review was that the decision of the Tribunal made on the 29 July 2002 was not made in good faith. The second ground for review was that the applicant contended that Part 8 to the Migration Act 1958 (reprint 8) is beyond the Commonwealth's legislative power. It would appear that, by consent of the respondent, this matter is to remain at large pending a decision of the High Court of Australia expected prior to the 13 February 2003. As things stand at present the Full Bench of the Federal Court in NAAV v Minister for Immigration [2002] FCAFC 228 is binding authority on me to the effect that Part 8 is constitutionally valid.

5. Although, the applicant's attack is upon the bona fides of the Tribunal's decision it is interesting to note that on [CB 261] the Tribunal deals with the applicant's arrival interview in the following form:

"When she arrived in Australia, a Department officer interviewed the applicant. At the beginning of the interview the applicant was told that the interview was an opportunity for her to provide any reason why she should not be removed from Australia."

It instructive in this context to look at the preamble to the Convention Relating to the Status of Refugees 1951. It is, relevantly, in the following form:

"PREAMBLE

The High Contracting Parties,

Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination.

Considering that the United Nations has, on various occasions, manifested its profound concern for refugees and endeavoured to ensure refugees the widest possible exercise of these fundamental rights and freedoms,

Considering that it is desirable to revise and consolidate previous international agreements relating to the status of refugees and to extend the scope of and the protection accorded by such instruments by means of a new agreement,

Considering that the grant of asylum may place unduly heavy burdens on certain countries and that a satisfactory solution of a problem of which the United Nations has recognised the international scope and nature cannot therefore be achieved without international cooperation..."

6. The obligations voluntarily accepted by the Commonwealth of Australia are obligations to consider the status of a person applying for protection against the criteria contained in the Convention as formulated in the domestic laws of the Commonwealth. The preamble to the Convention makes it clear that the agreement is one entered into for the purposes of advancing the condition of those who, having applied for refugee status, are accepted as refugees. Nowhere in the Convention nor in the domestic legislation is there an obligation placed upon an asylum seeker to establish why she should not be removed from Australia. The duties of the Commonwealth under the Convention and the domestic legislation are to ascertain whether or not a person is a refugee. That this should be done in a manner which reflects the high ideals contained in the first two paragraphs of the preamble is axiomatic. The wording of the preamble to the questionnaire seems difficult to reconcile with these ideals.

7. The interview with the Departmental officer was important to the Tribunal because it did not contain any information about matters which were later pivotal to the applicant's claim of a well-founded fear of persecution for Convention reasons.

8. The applicant is a nurse. In her application for a protection visa (which occurred some six months after her arrival although she was at all times in immigration detention) she claimed to have assisted a wounded political prisoner to escape from the hospital in which she worked. The escape plan was not successful and the prisoner was soon shot and taken back into custody. The applicant, sensing danger to herself for her part in the scheme, sought assistance from friends of her husband to escape the country. This story contrasted with the one given at the original interview which gave as a reason for her leaving Iran that she was the subject of sexual harassment at work. The information, which the applicant provided to the delegate and to both the first and second Tribunals, was consistent with the claim concerning the escaped prisoner although the details may have changed.

9. The applicant relies on three matters in support of the submission that the decision of the second Tribunal was not made in good faith in that the Tribunal did not exercise its decision making power with a mind open to persuasion. Those matters are:

(a) The Tribunal had before it the adverse decision of the first Tribunal [CB 261]

(b) On significant matters the first Tribunal's decision has influenced the second Tribunal's decision

(c) The summary manner in which the second Tribunal dealt with the two letters which were not considered by the first Tribunal.

10. It was the failure of the first Tribunal to consider two letters found at [CB 111-112] which led to the second review. These letters are described in a letter to the first Tribunal from Messrs Oboodi Barristers & Solicitors found at [CB 104-110 at 110] as:

(1) Letter received from the applicant's sister. The sister informs the applicant that her husband was arrested after her departure.

(2) Letter from the National Oil Company advising the applicant that her employment was terminated due her unauthorised political activities.

The order of Nicholson J made 4 April 2002 and found at [CB 217] requires the Tribunal (the second Tribunal):

"Give due consideration to the two documents received by the Tribunal with the applicant's submissions to the Tribunal dated 14 May 2001."

11. I note that even though those documents were considered to be so important that they were specifically referred to in His Honour's orders that they were not translated by an official translator prior to the hearing before the second Tribunal. At [CB 238] in the post hearing submission of the applicant's adviser's the following is stated:

"In respect of the two documents translated at the hearing, we submit there is no basis on which to dismiss their genuineness. It is often the case that decision-makers criticise applicant's for not providing documents to support their claims, even though, as stated above, it is obviously impossible to prove every aspect of an applicant's claim. In this case though, our client has actually managed to obtain a copy of a highly relevant, and probative, document. It fully supports our client's claims in respect of incidents at the hospital and should not be dismissed. We understand that an original cannot be obtained as the hospital has refused to provide it. The copy was obtained from a notice board at the hospital and is not the original. The original is kept on the hospital file."

At [CB 240-241] the two letters are translated but there is no date on the translations. The place of these documents in the court book would tend to indicate that they were translated after the hearing but no evidence has been given of this.

12. It is the applicant's submission that "for the Tribunal to have had the prior Tribunal's decision and have had regard to it undermines the clear intent of the Federal Court orders." She argues that as Nicholson J "ordered the second Tribunal be constituted by a different member to that who constituted the first Tribunal, it was intended that the second Tribunal would approach the applicant's claims afresh and not be influenced by the prior Tribunal's decision." She argues that "there is no warrant in the Act for the second Tribunal to have regard to the decisions of the first." She argues :

"That [the second] Tribunal had regard to the prior Tribunal's decision does not, of itself, indicate that there was a lack of an open mind on the part of this Tribunal. However, it is highly irregular and when taken with the other indicators does provide evidence supporting that submission."

13. This submission concerns solely the fact that the second Tribunal had before it and read the decision of the first Tribunal. It does not deal with the allegations of influence arising from that reading.

14. I am unable to say that the fact that the second Tribunal had before it the reasons of the first Tribunal undermines the orders of Nicholson J. In arguendo I posited the situation where the applicant made a statement about a particular incident, which elicited the response from the Tribunal "this is the first time you have raised this". Unless the Tribunal had in its possession a copy of the first Tribunal's reasons for decision it would be impossible to deal with a reply from the applicant that she did mention the matter before the first Tribunal and it had been reported on. I am not satisfied that the mere existence in the file of the first Tribunal's reasons for decision could contribute to a finding that the second Tribunal's decision was reached in a non bona fide manner.

15. The second submission made by the applicant is that the second Tribunal was influenced impermissibly by the prior Tribunal's decision. The applicant suggests there are two sub-classes of this impermissible influence, the first relates to the manner in which the second Tribunal dealt with certain matters which are set out below. The applicant submits that the similarity of treatment of these matters by both Tribunals indicates that the second Tribunal did not consider them independently of the first.

16. At [CB 208] the first Tribunal commented upon the applicant's claim that at her first entry interview, (the one in which she was asked to provide reasons why she should not be removed from Australia), she was unwell. Dealing with this matter the first Tribunal says:

"I accept the submission of the applicant's adviser and the applicant's own statements made at the hearing that the interview was not conducted in the most advantageous conditions for a person who had arrived by boat, with sick children, illness and a difficult sea voyage. The applicant claims at the time of this interview she was scared, suffered nausea and fever, could not concentrate and wanted to be left alone [The Tribunal continues with some information about medical reports upon the applicant]. I accept the applicant had been treated for malaria prior to her interview. There is no entry for 11 October, the day of her interview and I note there were numerous entries at the time she was very unwell. Therefore I do not accept that she was unwell on the day of her interview." [CB 207-208]

17. The second Tribunal dealt with the same matter at [CB 280]. The second Tribunal said:

"The applicant has explained that she and her daughter were ill at the time of the entry interviews. I accept that the applicant had been receiving medical treatment in the period leading up to the initial interview and has continued to receive medical treatment from time to time since then. I also accept that the applicant's daughter was ill at the time."

18. The second Tribunal did not come to the firm view that the applicant was not ill at the time of this interview. Instead it came to the view that if she had been ill she was more likely to have told the truth. This is not the same thing. I cannot see that in these extracts there is any indication of improper influence flowing from one decision to the other.

19. The next complaint relates to a finding at [CB 214] by the first Tribunal that the applicant had "fabricated a number of claims in order to make her and her children refugees." The words used are:

"The implausibility of her claims, coupled with her responses at the time of her initial interview leads me to conclude that the applicant has fabricated her later claims in order to enhance her claim to refugee status."

20. At [CB 279] the second Tribunal uses these words:

"I am of the view that the applicant has fabricated claims in an attempt to bring herself within the definition of refugee."

21. At the foot of [CB 282] the second Tribunal uses these words:

"I am of the view that the applicant fabricated her claim to have assisted an MKO prisoner to escape in an attempt to create for herself the profile of a refugee."

22. The words used by both Tribunals are similar. However, they are being used in a context that is familiar to members of these Tribunals. Taken in isolation I could not find that impermissible influence was self evident. However, it is appropriate to deal with these matters in the context of the two documents as a whole.

23. The applicant submits that the first Tribunal placed significant reliance on the applicant's omissions at her entry interview [foot of CB 208]. The omission referred to was that of her assisting the MKO prisoner to escape. The second Tribunal also dealt with this matter at [279], [281], and [282]. At [279] it says:

"I do not accept that the applicant assisted an MKO prisoner to escape from hospital where she worked. Significantly, the applicant's claim in this regard is completely at odds with the reasons she gave for leaving Iran during her entry interview..."

24. The failure of the applicant to mention the MKO prisoner incident, which now forms the most important basis of her claims for refugee status, is obviously of significance and would have to be commented upon by a Tribunal. I think there are significant differences in the manner in which the two Tribunals have approached these claims even though they both come to the same conclusion.

25. At [CB 211] the first Tribunal makes the following comment:

"The Tribunal put to the applicant that it was implausible a MKO prisoner, who was under guard in a locked room, would be left alone with a nurse."

The applicant states that at [CB 281] the second Tribunal also deals with the matter. The applicant alleges that it makes the same finding using the same language. The Tribunal after considering the applicant's claim that the guard remained outside, states:

"However, I consider it implausible that the hospital would allow an employee to be alone with a MKO prisoner who was regarded as dangerous."

26. Consideration of all the facts and circumstances surrounding the evidence about the MKO prisoner is essential to a proper consideration of the applicant's claims. This court has now had experience of a large number of applications for review and has read a large number of reasons for decisions by Tribunals. The use of words like "implausible", "fabrication", "inconsistent" is, not unexpectedly, common. These words imply a certainty which the Tribunal wishes to be understood by any court reviewing its decision.

27. Finally, under the general heading of "influence" of the first Tribunal's decision, the applicant notes that the first Tribunal placed "no weight" on the evidence of a witness, Ms Asghari. Ms Asghari gave evidence at the first Tribunal but not to the second. She was formerly a nurse and had MKO connections. She also helped an injured MKO supporter to escape in 1982. In respect of her evidence the first Tribunal said:

"When I asked the applicant's witness about the current situation in Iran she stated that she had not been back to Iran since her escape in 1982. As this witness has no knowledge of the current situation in Iran I place no weight on the information of this witness for an incident the applicant claimed occurred in 2000."

28. The witness did not give evidence at the second Tribunal but it did deal with her evidence at [CB 283] where the Tribunal says:

"I note the evidence of Ms Asghari and Mr Massali provided to the Tribunal as previously constituted. I accept that Mr Massali was given painkillers by a guard when he was in Evin prison. I also accept that Ms Asghari was part of a group of hospital staff who assisted MKO prisoners escape from hospital in the early days of the Revolution. However, their evidence does not overcome the problems I have with the credibility of the applicants' claim."

29. These extracts indicate that the second Tribunal had regard to the evidence before the first Tribunal. But they do not indicate that the second Tribunal was influenced by the findings of the first. Given the nature of the evidence it is not unreasonable to find that both Tribunals have come to the same conclusion about it.

30. I do not believe that taken independently any of the complaints made by the applicant indicate that the second Tribunal was influenced by the decision of the first. But I have also looked at the complaints as a whole to see whether they demonstrate a pattern from which the allegation can be made out. I am not satisfied that they do. I have no doubt that it was open to the second Tribunal, on the evidence before it, to come to the same conclusion as the first Tribunal did. My knowledge of Tribunal decisions confirms that they do frequently share a similarity in language. The sharing of language to express conclusions does not, of itself, indicate influence to the extent that it could be said that the second Tribunal had not come to its decision independently.

31. At [CB 240-241] the two letters which were referred to in the orders of Justice Nicholson and which were not considered by the first Tribunal are set out in their translated form. They are dealt with by the second Tribunal at [CB 283]:

"I note also the letters provided by the applicant in support of her claims. In relation to the letter purportedly from the applicant's sister, I am of the view that it would have been a straight forward matter for the applicant to either write the letter herself, or to ask her sister to write the letter for her. I am also of the view that the letter of dismissal would have been an easy letter to manufacture, particularly by someone who had access either to a blank hospital letterhead or to another letter containing the letterhead. In relation to this particular letter, I note that at the hearing the applicant said the letter was on the hospital noticeboard and that her sister had gone to the hospital office to obtain the letter. However, in submissions provided after the hearing, the applicant's adviser asserts that the letter provided to the Tribunal was taken from the hospital noticeboard. In my view, these letters do not overcome the problems I have with the applicant's evidence and I place no weight on them as proof of the credibility of the applicant's claims."

32. The way in which the Tribunal has dealt with these letters is of concern. The letter themselves, if accepted, would be corroborative of the applicant's statement concerning the MKO prisoner and provide a very real reason for a genuine fear of persecution for convention reasons. The letters must be treated seriously. The Tribunal makes no findings about the letters. There is no finding that the letters are manufactured, they might as equally not have been manufactured. The Tribunal's stated reason for placing no weight upon the letters as proof of the credibility of the applicant's claims is not the condition or the substance of the letters themselves but because:

"These letters do not overcome the problems I have with the applicant's evidence."

33. This situation seems to me to be similar to that addressed by the Full Bench of the Federal Court in Gamaethige v Minister for Immigration [2001] FCA 565. In this case two important pieces of corroborative evidence were dismissed by the Tribunal. At [53] Finkelstein quoted from the judgment of Branson J at first instance:

"It seems plain... from the Tribunal's reasons that the Tribunal did not seek to make an assessment of the applicant's credibility having regard to all the evidence and other material before it. Rather, the Tribunal made an adverse assessment of the applicant's credibility and then turned to consider the evidence of Mr Kadigamuwa and the medical and dental reports concerning the applicant."

At [54] His Honour said:

"Put another way, the Tribunal's approach to the task of finding facts was flawed. The Tribunal was required to determine whether the facts asserted by Mr Gamaethige were true or probable (note the danger identified by the High Court in Wu Shan Liang v Minister for Immigration (1996) 185 CLR 259 at 282-283 of stating the requirements in terms of "balance of probabilities"). It was not required to accept his evidence in that regard because that evidence may have been discredited in various ways. ... However, in deciding whether or not the asserted facts were true or probable, the Tribunal was required to take into account corroborative evidence because that evidence had a tendency to make it more likely that the asserted facts were true or probable. This is not to say that the Tribunal was required to accept corroborative evidence as true or probable. As with the evidence given by Mr Gamaethige, the corroborative evidence may be impeached. But unless it were impeached, it could not be ignored. Importantly, in the process of reasoning, the Tribunal was not entitled to pay no regard to the corroborative evidence in the course of deciding whether the evidence of Mr Gamaethige was true or probable and then use its conclusion on that evidence (that it was untrue) to impeach the corroborative evidence."

34. At [76] Stone J also criticised the Tribunal for taking this approach with the evidence of a witness. She also supported the criticism made by Branson J and set out above. It does seem to me that the second Tribunal did not indicate in its reasons that it had given the letters the type of consideration which the applicant might have expected following the consent orders of Nicholson J. The last sentence of the paragraph in [CB 283] in which the letters are considered is ambiguous as to whether the lack of weight given to the letters arose out of the Tribunal's general opinion of the credibility of the applicant or some intrinsic (but unexplained) fault of the documents itself.

35. Gamaethige was a case decided under the old s.476. I am satisfied that any error arising out of a similar failure by the Tribunal in this case would be one protected by s.474.

36. The question that is left for me to consider is therefore whether the cumulative effect of any errors found in the manner in which the Tribunal exercised its jurisdiction satisfies me that the Tribunal approached its task with a closed mind. Stone J considered the question of actual bias in her judgment in Gamaethige at [79-83]. The cases which she cites there are indicative of the many views that have been expressed on the constituents of actual bias and the thread which runs through all decisions that a decision to find actual bias is a grave matter. I am not satisfied that the decision of this Tribunal indicates a closed mind nor that its failings indicate a prejudice which was not open to persuasion in favour of the applicant. In these circumstances I must dismiss the application, which I do. I order that the applicant shall pay the respondent's costs which I assess in the sum of $4,000.00 pursuant to Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

37. The applicant in this matter was represented by Mr Howard on a pro bono basis. The court would like to express its gratitude to Mr Howard and other members of the legal profession in Western Australia who have given of their time and expertise to assist applicants in these matters.


I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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