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MIGRATION - Review of RRT decision - errors found in Tribunal's recollection of evidence - whether errors affected Tribunal's decision - whether Tribunal acted with reckless indifference - whether its actions constituted a failure to enter upon its task in a bona fide manner.

NASS v Minister for Immigration [2002] FMCA 350 (9 January 2003)

NASS v Minister for Immigration [2002] FMCA 350 (9 January 2003)
Last Updated: 5 February 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NASS v MINISTER FOR IMMIGRATION
[2002] FMCA 350



MIGRATION - Review of RRT decision - errors found in Tribunal's recollection of evidence - whether errors affected Tribunal's decision - whether Tribunal acted with reckless indifference - whether its actions constituted a failure to enter upon its task in a bona fide manner.



Migration Act 1958 (Cth), s.474

SBBS v Minister for Immigration [2002] FCAFC 361

SCAZ v Minister for Immigration [2002] FCA 1377

Minister for Immigration v SBAN [2002] FCAFC 431

R v Secretary of State for the Home Department; ex parte Bugdaycay [1987]

Applicant:
NASS



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 938 of 2002



Delivered on:


9 January 2003



Delivered at:


Sydney



Hearing Date:


18 December 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr L Karp



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

I declare:

(1) The decision of the Refugee Review Tribunal to be invalid and of no effect.

(2) I order that the respondent pay the applicant'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.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 938 of 2002

NASS


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is an Iranian citizen who arrived in Australia on 21 March 2000. On 28 April 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs under the Migration Act 1958 (Cth) ("Migration Act"). On 4 August 2000 a delegate of the Minister refused to grant a protection visa and on 10 August 2000 the applicant applied for review of that decision. Submissions in support of the applicant's request for review were first made by his adviser on 25 August 2000. However, the hearing letter was only sent on 6 November 2001 and referred to a hearing to take place on 10 December 2001. The hearing actually took place on 12 December 2001. The decision of the Tribunal was made on 30 June 2002 and handed down on 21 July. It is in respect of that decision that the applicant seeks judicial review.

2. The applicant's claim of a well founded fear of persecution for convention reasons arose from his conversion to Christianity whilst in Iran which had caused him to be arrested on two occasions. He claimed to have been the subject of interrogation, torture and detention and only to have recovered his freedom upon the payment by his family of large bribes. He claims to have fled Iran on 21 March 2000 because of persecution and systematic harassment for reasons of faith and imputed political opinion. He believed that if he was returned to Iran he would be in serious danger and possibly executed. He claimed that he had been classed as a mortad or an apostate.

3. The Tribunal made the following findings at [CB 127]:

"I found that the applicant did not convert to Christianity or was of any adverse attention to the authorities prior to leaving Iran and arriving in Australia. While I accept that the applicant completed a Word of Life course and has been baptised into the Christian religion in August 2000 and that there are witnesses who attest to the genuineness of his Christianity, I am unable to accept that the applicant's interest, conversion and baptism into Christianity was for any purpose than to provide for himself the profile of, and to enhance his claims to be, a refugee. In this respect I am satisfied that s 91R(3) of the Act applies to the applicant and his conduct in Australia must be disregarded in determining whether he has a well founded fear of being persecuted for convention reasons."

4. At the commencement of the proceedings a transcript of the hearing before the Tribunal was entered into evidence as Exhibit 1. The applicant claims that the Tribunal did not make a bona fide attempt to exercise its power of review. The submission is put on two bases. The first is that the actions of the Tribunal in its review of the evidence and findings and the conclusions contained in its reasons for decision amounted to "a concerted, blatant and dishonest attempt to find against the applicant on the basis of lack of credit." Alternatively the applicant submits that "The Tribunal has been so recklessly indifferent to the accuracy or otherwise of its statements that it cannot be said to have made a bona fide attempt to exercise its power."

5. The applicant's Counsel, in his written submissions, produced a table which contained fifteen alleged errors on the part of the Tribunal. The respondent responded to that table with its own table that contained sixteen errors. It appears that the respondent's error No 2 may have come from an earlier version of the applicant's submissions and had been abandoned. However, during the course of the hearing, I found two additional errors. I have prepared for the purposes of these reasons a new table containing the Tribunal's statement, the applicant's comment and the respondent's comment in respect of the fifteen original errors and in respect of the two new errors which I have labelled "NE1" and &quo;
t;NE2". In this part of the table I have set out under the heading "Tribunal's Statement" the words contained in the Court Book and under the heading "Comment" the words contained in the transcript.



TRIBUNAL'S STATEMENT
APPLICANT'S COMMENT
RESPONDENT'S COMMENT

1
"He claimed that he had contact with others in other cities..." RD 118 at [34]
See Transcript (T) A95 - "... they said that I was in contact with other countries..."

The claim has been incorrectly rendered.
It is true that the Tribunal misstated what was said at this point of the interview. However, it is clear that the Tribunal understood that the applicant's claim was that the people interrogating him said that he had been in contact with people in other countries: see CB 118-119 at para 36; and CB 125 at para 58. This misstatement is obviously merely an oversight and led nowhere in the decision.

2
"It was put to him that [his evidence of being caught and release twice] flies in the fact of his claim that all apostates are killed." (RD 118 at [35])
This was not his claim at (T) Q99 he was asked, "Doesn't that fly in the face of your claim that if you returned to Iran you'll be killed because you're an apostate?"

The Tribunal also relied on this alleged claim ["He had claimed that all mortad in Iran were killed"" in the "Findings and reasons" section of its decision at RD 125 at [59].
This was in fact the applicant's claim. At the beginning of the applicant's evidence, he was asked what he feared if he were returned to Iran [question 93; page T.17]. The answer was "I would be killed definitely 100%". The Tribunal then asked "Why would you be killed?" The answer [T.18] "Because I had problems in Iran and for the reason that I have changed my religion I would be known as Mortad or an Apostate and my punishment according to Islam according to the law is execution.

The applicant is at least correct to say that the Tribunal relied on its claim in its findings and reasons section.

3
"He claimed ... that he had never tried to do anything publicly, that he evangelised on his own family ..." (RD 118 at [35])
He did not say this! At (T) A99 he did say,

"... what I`ve learned through experience from my own country is that they never try to do something so publicly, they never - they never publicise about it and I have evangelised many people including my own father, my family, my friends..."
The applicant's evidence was in fact to this effect. Although [at question 99, T.19] the applicant said that he evangelised many people at [A.143. T.28]. It must be borne in mind of course that the Tribunal prepared the statement of reasons after the interview and so may reasonably be expected to have mind the entire hearing. It is not necessary for it to set out in order the evidence given, particularly in view of the fact there was six months between the hearing and the statement of reasons.

4
In its "Findings and Reasons" section the Tribunal commented,

"He attempted to resile from the those earlier claims [i.e. that he would be killed for being mortad or apostate], saying that it was what happened to him, that he never did anything publicly, that he only evangelised his own family ..." (RD 124 at [57]).
The applicant did not resile from any claim. As to the inaccuracies relied upon see 9T0 A 99, quoted immediately above.
This is the same point made in respect of point 4 above.

5
"He was asked how he could know that the authorities considered him the head of an international conspiracy of Christians whose aim was to overthrow the government. It was put to him that at the most his evidence disclosed some peripheral contact with the Christian church and that he had an interest in Christianity. He claimed that it was all the time, that he was mortad, and had contact with Christians internationally."" (RD 119 at [36]).
Whilst the question is rendered accurately (see (T)Q 101), the answer is not. The answer was, "That's been through their questioning, that's what they were saying throughout the whole time. They were saying, they were asking me whether I was a mortad or not and they were saying - in the beginning this is what they were saying and then they were asking what people I'm in contact with and who contact me and which countries I'm in touch with and questions such as that."

The Tribunal also relied on this summary in its "Finding and Reasons" section at RD 125 at [58].
It is true that the answer is not accurately set out, although the reference to "it was all the time" coincides with what was stated by the applicant at A.101, T.20. The difficulty was that the Tribunal in fact asked three questions: first, "how could you know what their purpose was?"; second, "how can you say they accused you of being the leader?"; and third, "how could they possibly think that you were a leader of an international conspiracy?" It is clear that the Tribunal's mind was focussed on the applicant's evidence, namely, that he had peripheral contact with Christian organisations in Iran and was not a member of any Church. However, the question that the applicant was actually answering was the first question, namely, "how did you know what their purpose was?" It is easy enough during a hearing to mishear evidence when your mind is focussed on one question and the answer is going to another. It is much more so with a great lapse of time. This minor misstatement does not reveal anything close to a lack of honesty in the Tribunal.

6
"He was asked if it was his evidence that confessing to the Komiteh that he was mortad and had evangelised Muslims meant that he would not go to Court and be killed as a mortal and proselytiser. He had nothing to say." (RD 119 at [38]).
The question was not asked!

The Tribunal also relied on this alleged question and alleged non answer in the "Findings and reasons" section of its decision at RD 125 at [60].
This question was not asked, but the Tribunal drew an inference from his earlier answer [A.105, T.22] that being arrested by the Komiteh somehow allowed him to escape the severe consequences of having been a Mortad: see [CB 125 at para 60].

There is, and can be, no direct evidence as to why the Tribunal set out a question that was not asked, however, there is available an innocent explanation just as readily as a sinister one. That is, that the Tribunal had intended to ask such a question and perhaps had notes of that question without anything in reply (which would explain why it thought that the applicant had nothing to say to it) but that with the passage of time, it failed to realise that there was nothing written because there in fact had been no question.

7
"The applicant was asked about his claim of becoming like a son to a Christian family. He was asked how that came about. He claimed that he went to Tehran and met his neighbours. He was asked for specific details, but was unable or unwilling to do so." (RD 119 at [39]).
The applicant was not asked for specific details. The relevant questions and answers are as follows;

Q108: We seem to be going around in circles. May I ask you this, ***. You say that you became friends with a Christian family and became like a son to them.

A Yes

Q109 How did that come about?

A When I moved to Youssefaba then I met my neighbours, Mr Sepi, Mohammed Sepi, and Mrs Shahabi and their daughters.
It is true that the Tribunal did not say to the applicant "Please give me specific details".

However, the context of the question must be considered. In his statutory declaration [CB 43] the applicant stated "I became very good friends with my neighbours Zari Shahbi... and their daughters" and I became increasingly closer to the Sapahar family. I became like a son to them..." At the hearing, the Tribunal asked [Q.109, T.23] "How did that come about?" That is a classic open-ended question. Such questions are invitations to give details of an otherwise broad claim. The Tribunal's statement that the applicant was unable or unwilling to do so [CB 119 at para 39] is well justified by the answer given by the applicant [A.109, T.23] "When I moved to Youssefaba then I met my neighbours,... and their daughters." This can hardly be described as an answer to the question let alone the provision of any detail beyond what was written in his statutory declaration. It would take more than an eagle eye to see this as part of the Tribunal's concerted, blatant and dishonest attempt to find against the applicant on the basis of lack of credit.

8
"He was asked how long he went to the church. He claimed it was up until Mrs Shahabi's arrest. He was asked when that was. He did not answer but claimed that she fled Iran in December 1997, and that had been going to church 2 or 3 months before that." (RD 119-20 at [39])
In fact at (T) A118 he claimed that he, not Mrs Shahabi, was going to church until 2-3 months before she fled Iran. Obviously that was the time of her arrest. The pejorative words, "he did not answer" have no basis in fact.

The Tribunal relied on this supposed evidence in the "Findings and Reasons" section of its decision at RD 125-5 at [61].
It is true that the applicant said that it was he and not Mrs Shahabi who was going to Church two to three months before Mrs Shahabi fled Iran. However, it is submitted that the word "she" in the first line of CB 120 is a typographical error and should be "he".

It is clear that at the hearing the Tribunal understood the applicant to be referring to himself as having gone to Church two to three months before December 1997. The following question was "So when did you first start going to Church then?" [Q.119, T.24] The sequence of questions was: "How often did you go to Church?", "Did you become a member of the Church?", "How long did you go to Church?", and then, "When did you first start going to Church?" This is a logical sequence which shows that the Tribunal was trying to ascertain details of the applicant's claims to have gone to a particular Church in Iran in 1997.

Far from being pejorative, the statement "He did not answer" is quite accurate. In his statutory declaration [CB 45 at para 24] the applicant did not mention an arrest of Mrs Shahabi but rather that she fled Iran in December 1997. Accordingly, it was understandable that when the applicant gave evidence that he went to Church up until Mrs Shahabi's arrest, the Tribunal should ask "When was that?" [Q118, T.24] The answer: "She fled Iran in December 1997" was not in fact an answer to that question. It is, with respect, indicative of an over zealous approach to consider anything sinister in the statement of the Tribunal that the applicant did not answer its question.

9
"It was put to him that he had attended the church only about 6 times. He had nothing to say." (RD120 at [39]).
He had nothing to say about the question because the question was not asked!
The question was not asked. The respondent repeats the comments in respect of point 7 .

10
"The applicant was asked what he did at the church. He claimed that he attended the sermon session with Mrs Shahabi. He was asked what he did there, and he said bible studies. He was unable or unwilling go give details, and appeared reluctant to be more than general." (RD 120 at [40])
The exchange was as follows;

Q123 So what did you do when you went to church, ***?

MR DAVITYAN

Service, sermon.

A Services, sermons, the sermons sessions, don't know what that, and that's - they're the sessions that Mrs Shahabi introduced to me and they were very interesting and Mr Edward was conducting them.

THE TRIBUNAL

Q124. What did you do there though? Did you study the Bible, did you listen to sermons, did you discuss Christianity? What did you do there?

A They were praising for the sermons and also one section of Bible was selected, one verse of it, and that would be discussed and be spoken about.

If the Tribunal wanted details it had the opportunity to task. As it was, the applicant gave an answer to the effect that he participated in sessions which involved bible study. He answered the question.
The Tribunal in this passage was concerned with two things: firstly, the appearance of the applicant, and secondly, the absence of detail in the applicant's response.

As to the first matter, the Tribunal was in a position which Court is not and cannot be attacked on its findings in this regard.

As to the second matter, it must be borne in mind that the essence of the applicant's claims was that he was a practising Christian in Iran and moreover that he had completed three courses on Christianity in Australia. It was therefore critical to his claims that he be accepted as a Christian. If course the Tribunal could have asked for further details, but it is not the Tribunal's place to make the applicant's case for him. As it is, the Tribunal had already probed the applicant [see Q.124] after a very vague answer to the general "So what did you do when you went to Church ***?" [Q.123, T.24] It is reasonable, with respect, for the Tribunal to have expected a little more detail than reference to a sermon and bible reading and discussion. After all, this is not an applicant who was forced to attend against his will but rather went there with an apparently keen interest.

There can be no criticism levelled at the Tribunal in respect of its comments.

11
In its "Findings and Reasons" section the Tribunal stated, "This is not the evidence that a person who attended church regularly would give." (RD 126 at [62]).
The applicant did not claim that he attended church regularly. He stated that his attendance was, "Every forty or fifty days..." (see (T) A112), a fact acknowledged by the Tribunal at RD 125 at [61].
It was indeed the applicant's evidence that he attended Church regularly. Regularly may be once a day, once a week, once a month or once every forty of fifty days. It is as opposed to occasionally, or seldom.

Once against the criticism of the Tribunal cannot be sustained.

12
In its "Findings and Reasons" section the Tribunal stated,

"In his statement he claimed that he was arrested, detailed, interrogated and tortured into confession on two occasions by the Pasdaran, once after being stopped when driving a car and having a bible found in the boot or glove box, depending on the account take ..." (RD 125 at [60]).
There are two errors here,

1. He claimed to have been caught by the Pasdaran and, at least on the first occasion, tortured by the Komiteh (RD 45-6), and

2. He claimed (at RD 45.5) that the bible was found in his glove box. There was no claim at any stage that it was found in the boot. The allegation of inconsistency is demonstrable false.
The first error alleged here is inconsequential firstly because the Tribunal rolled the "arrest, detention, interrogation and torture into confession" into one set of acts which were at least clearly set into train by the Pasdaran. Further, nothing is made of the difference between that and the claim that the claim that he had made confessions to the Komiteh. The Tribunal certainly doesn't say in paragraph 60 at CB 125 that this evidence was inconsistent and contradictory as it had in paragraph 59.

Likewise, with the reference to the boot or glove box there is no allegation of inconsistency that is relied upon.

13
The Tribunal commented that the applicant's answers to the questions as to how he left Iran and the steps that he took to do so (i.e. (T) Qs 125, 126 & 127) were, "...generalised and vague and he avoided giving any details." (RD 120 at [41]).
The relevant exchange was as follows,

Q125 Now, you say that you decided that you were going to leave Iran after being arrested for the second time in December, 1999. Is that correct?

A. Yes.

Q126 So what steps did you take to get yourself out of Iran, ***?

A. Like what do you mean?

Q127Well, what did you do? There was obviously a need for you to organise some things to get yourself out of Iran. How did you go about doing it?

A After I got visa, the visa to come to Australia, with the contact that I had with others in the church we were thinking that it's obvious that I might be on the black list, that I might be prohibited from leaving the country and have to think of something and because of the relationship that I had with the others and we could make contact, one of the said that he - sorry, I'll just get him to repeat that. He said that he knew someone who could do that for me in case it is, in case my name is on the list that he could take it out of the list and I got the phone number and I contacted him and he said that if, if that's the case then he would do that for me but it's going to cost me 7,000,000 (indistinct) and I was told that I could leave, he told me that I could leave on such day which was the 20th of March that I could leave Iran.

Again, the applicant answered the question. If the Tribunal required more detail it could ask specific questions.

The Tribunal also relied on the allegations of generalised evidence and lack of detail in the "Findings and Reasons" section of its decision at RD 126 at [64].
This statement is the Tribunal's view of the applicant's evidence. That view was open to it. Once again, the Tribunal asked an open question "What steps did you take to get yourself out of Iran ***?" [Q.126, T.25] The Tribunal, having been asked what it meant, gave a brief explanation: "There was obviously a need for you to organise some things to get yourself out of Iran. How did you go about doing it?" Indeed the applicant did answer the question and of course the Tribunal could have asked more specific questions.

However, once again, that is not the Tribunal's role. It is for the applicant to put forward his claims and for the Tribunal to assess those claims in light of the evidence and other material before it. It is incorrect to assert as the applicant does that the Tribunal is blameworthy for not asking more detailed questions and then finding that the applicant gave vague and generalised answers.

An example from the answer given by the applicant [A.127, T.25] was "He said that he knew someone who could do that for me in case it is, in case my name is on the list that he could take out of the list and then I got the `phone number and I contacted him..." There was no mention of any names or dates or lengths of time nor indeed of how the applicant obtained his visa at that stage (this only came up later in response to direct questioning by the Tribunal). The answer to the question was brief, did not give any specific detail and it is reasonable to give it the description as the Tribunal did as being generalised and vague.

14
In relation to his obtaining an Australian visa the Tribunal stated, "It was put to him that his protection visa application indicated that he did not visit the embassy." AB 120 at [43].
This was not put to him. Also the relevant question in the application form was, "Did you have to visit the ... Embassy ... to obtain your visa?" (RD 11) It did not ask whether he did so.

The Tribunal relied on this alleged question in the "Findings and Reasons" section of its decision at RD 127 at [65].
It was not put to him. It is difficult to see what reliance the applicant can place on the answer to question 48[CB 11]. It is clear that the question is intended to ascertain whether the applicant had been to an Embassy, Australian High Commission or Consulate to obtain the visa. Why else would the question, if answered yes, require a date and a city to be specified?

Although it is unclear why the Tribunal thought this question was asked when it is clear that it was not, there is, as before, an innocent explanation as much as there is a sinister one. The respondent relies on the comments in point 7.

15
In relation to the applicant's claims of evangelising, the Tribunal stated, "It became apparent that his claim of evangelising was speaking to his family on the phone from Australia." (RD 121 at [44]).
There is nothing in the answers to the relevant questions ((T) A 143-145) which in any way suggests this. It is a complete fabrication.
This is not a complete fabrication. The applicant says at the top of page 28 of the Transcript that he evangelised his own brother. He was then asked whether any of them (referring to his family and colleagues) converted to Christianity. He referred to his aunty and his sister. Then he said, "And at the moment I'm working on my brother". He was asked how he could do this since his brother was in Iran. The applicant then replied that: "Every time that I have a `phone contact with him even if it's two words..." He continues to say that he had telephone conversations with his aunty. From these it may reasonably be found that his evangelising in Australia was over the `phone to his family.



NE1

Tribunal's Statement
Transcript

He claimed that he was a believer, but he could not go to the Church, that his aunt was a believer, and that he worked on his brother in Iran [CB 121] at 44.
Q. Did any of them convert to Christianity?

A. And also my aunt, my aunty. My sister is a believer but she can't go to any churches and my aunty which I have spoken to her from the beginning on many occasions, she's also a believer and worked on my brother [T 28 Q144].



NE2

Tribunal's Statement
Transcript

He was asked "What did the bible studies entail?, and he said they studied the bible. This was not the evidence a person who had attended church regularly would give. It was apparent that the applicant did not know the detail of his claim.
There is no question "What did bible studies entail?" The nearest question is T25 Q124 "What did you do there though? Did you study the bible, did you listen to sermons, did you discuss Christianity? What did you do there?"

A. They were praising for the sermons and also one section of bible was selected, one verse of it and that would be discussed and spoken about.



6. The findings I make in respect of these errors are as follows:

Error 1

I accept that this misstatement did not affect the Tribunal's understanding that the applicant's claim was that he had been accused of being in contact with people from other countries.

Error 2

Whilst there is an incorrect rendition of what occurred at the hearing

I accept that the Tribunal makes it clear in its findings that it regarded the comment made by the applicant "that he would be killed if he was returned to Iran because he was an apostate" was incompatible with his story that he had in fact been arrested twice as an apostate and on both occasions released on the payment of a bribe.

Error 3

I find that the response make by the applicant is wider than that credited to him by the Tribunal and that his claim to have evangelised was more extensive than that allowed by the Tribunal.

Error 4

I am satisfied that the applicant did not resile from his original claims.

Error 5

I am satisfied that the applicant did not tell the Tribunal that he was in contact with Christians internationally. His evidence was clearly that these were matters being put to him by the Iranian authorities. This is an error which may have gone to the Tribunal's consideration of the applicant's credibility.

Error 6

The comment made by the Tribunal at the end of this passage "He was asked for specific details, but was unable or unwilling to do so" is a comment which is critical of the applicant. It indicates that specific questions were asked but were not responded to. Instead, it is put by the respondent that the applicant was asked an open ended question to which he did not respond specifically. I do not consider that these are the same thing. I would therefore not consider that the comment made by the Tribunal is responsive to what actually occurred, as opposed to what the Tribunal would have its readers believe occurred.

Error 8

It seems to me that the real complaint here is the addition of the pejorative remark "He did not answer." I have looked at the transcript [p24] and the questions referred to by the respondent. I agree there are a series of questions but I do not agree that the applicant did not answer them. He gave answers to all questions. It is quite clear from the transcript that the applicant had difficulty in understanding some of the questions being put to him by the Tribunal. I do not have the impression from reading that transcript that the applicant was dissembling, but that is the impression one would get from reading the Reasons for Decision.

Error 9

The concern I have is that a question, which was admittedly not asked, was used by the Tribunal in coming to its findings.

Error 10

My view about this matter is the same as my view about item 7.

I repeat that the transcript indicates that the applicant answered all relevant questions. The court is unable to say what appearance the applicant gave to the Tribunal but I do have a concern that the Tribunal's findings and reasons proceed on the basis of apparent unsatisfactory responses when the transcript indicates that was not necessarily the case.

Error 11

I accept the applicant's criticism of this matter. The context would appear to indicate that the Tribunal's use of the word "regularly" as a synonym for the word "frequent", the evidence indicates otherwise.

Error 12

I accept the submissions made by the respondent in relation to this matter.

Error 13

This is a similar complaint to that made in respect of items 7 and 10 and I take the same view about it I have concerns about the Tribunal's comments in the light of the transcript evidence and the reliance upon inaccuracies to make findings about the credibility of the applicant.

Error 14

I repeat my concern that the Tribunal made reference in its Reasons for Decision to questions that were not asked. Whilst it does not appear that the response the applicant is alleged to have given to this non existent question affected the mind of the Tribunal it is possible that it did do so.

Error 15

The question asked was as follows:

"Q143 Now, you say that you confessed to evangelising Muslims when you were in Iran and that you gave them a list of those people whom you did so to. Can you explain to me just how you did that? How would you evangelise someone in Iran.

A Well, I evangelised my own brother, my sister, my parents and my close friends and when I say friends I don't mean colleagues or just people who I knew, I mean close friends which I knew and it is because I knew that evangelising is difficult and it is a dangerous thing to do in Iran.

Q144 Did any of them convert to Christianity?

A And also my aunt, my aunty. My sister is a believer but she can't go to any churches and my aunty which I have spoken to her from the beginning on many occasions, she's also a believer and at the moment I am working on my brother."

I do not believe that these responses can be characterised as confining a claim of evangelising to speaking to his brother at the telephone. It seems to me that the applicant is claiming to have evangelised his entire family and some close friends and his aunt. At [CB 18] the applicant gives details of his family members who were not in Australia at the time of his application. It would appear from this document that he has brothers by the name of Hassan, Ali, Parviz, Hamid and Manoucher. It must be possible that the brother he refers to as having evangelised is a different brother from that who he describes as telephoning from Australia.

NE1

7. In relation to the complaint "NE1" this misstatement is contained in the same paragraph of the Reasons for Decision [44] as the references to his brother and may well have added to the concerns which the Tribunal had as to the applicant's credibility.

NE2

8. These matters goes to the concern which I have already expressed about the Tribunal's comments on the applicant's non specificity of responses.

9. I have no evidence before me that the Tribunal had before it the transcript of the hearing or that it heard the tape. I would therefore propose to proceed on the basis put forward by the respondent's counsel that the Tribunal began to deal with this matter some months after the hearing had taken place. I am guided, in my approach as to whether what occurred constitutes a failure to approach the Tribunal's task in good faith, by the views of the Full Bench of the Federal Court in SBBS v Minister for Immigration [2002] FCAFC 361 and in particular [42 to 59].

10. The applicant has put his case on two alternative bases. The second alternative basis is that the actions of the Tribunal demonstrate a recklessness in the exercise of the power (SCAZ v Minister for Immigration [2002] FCA 1377). In Minister for Immigration v SBAN [2002] FCAFC 431 Heery and Keifel JJ at [8] said:

"As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent. But this is not to say that the test is objective. The enquiry is directed to the actual state of mind of the decision maker. There is no such thing as deemed or constructive bad faith. It is the ultimate decision - in the case of the RRT, affirming the rejection of a protection visa application - which must be shown to have been taken in bad faith. Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith. Such defects can be equally explicable as a result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision makers duty."

11. On the other hand no Full Bench or High Court decision has yet resiled from the statement of Lord Bridge in R v Secretary of State for the Home Department; ex parte Bugdaycay [1987] AC 514 at 531:

"The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."

12. I have found that the Tribunal made a significant number of errors. Worse, in many cases, those errors contributed to the decision which it made not to accept the applicant's story. If, as suggested by the respondent, the Tribunal waited some months before embarking upon the writing of its decision and forgot what questions it did ask or what responses the applicant gave, then it would seem to me that by not (at the very least) playing the tape which is always available, it was acting with reckless indifference to the effect of its forgetfulness upon the decision. I am not suggesting that the Tribunal knew that its decision was wrong, that is not necessary (SCAZ supra). I believe that a heavy burden is placed on the Tribunal because of the very width of its powers. Section 474 of the Migration Act gives the Tribunal extraordinary rights. But with extraordinary rights come extraordinary responsibilities and obligations. The obligation is not one not to make mistakes, but it is an obligation not to abuse the privilege given to it by undertaking its tasks in a reckless manner. I am satisfied that this is what occurred here. Having come to that conclusion I do not believe it necessary to deal with the alternative submission of the applicant, save to say that they are very grave charges, which I believe the applicant would have difficulty in making out on the evidence before me.

13. I am satisfied that in coming to its decision in this matter, in the manner in which it did, the Tribunal did not enter upon its task in a bona fide manner. In so failing it placed itself within the first exception to the Hickman dicta that:

"the decision is a bona fide attempt [by the decision maker] to exercise its power ..." R v Hickman ex parte Fox and Clinton (1945) 70 CLR 498 at 615 per Dixon J.

14. I declare the decision of the Tribunal in this matter to be invalid and of no effect. I order that the respondent pay the applicant's costs which I assess in accordance with Part 21, Rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4,000.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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