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MIGRATION - Review of Refugee Review Tribunal's decision affirming a delegate's refusal of a protection visa - disputed findings of fact - no reviewable error found.

WAIX v Minister for Immigration [2004] FMCA 729 (29 October 2004)

WAIX v Minister for Immigration [2004] FMCA 729 (29 October 2004)
Last Updated: 8 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WAIX v MINISTER FOR IMMIGRATION
[2004] FMCA 729



MIGRATION - Review of Refugee Review Tribunal's decision affirming a delegate's refusal of a protection visa - disputed findings of fact - no reviewable error found.



Migration Act 1958

Federal Magistrates Court Rules 2001

NAAV v MIMIA [2002] FCAFC 228

R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1

Re: MIMA; Ex parte Cohen (2001) HCA 10

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

Bruce v Coles (1998) NSWLR 163

Applicant:
WAIX



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


WZ 259 of 2002



Delivered on:


29 October 2004 (Melbourne)



Delivered at:


Melbourne



Hearing date:


9 June 2003 (Perth)



Judgment of:


Walters FM



REPRESENTATION

Counsel for the Applicant:


Mr Ley



Solicitors for the Applicant:


Pro bono representation



Counsel for the Respondent:


Mr Macliver



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) The application be dismissed.

(2) Pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001, the applicant do pay the respondent's costs of these proceedings fixed in the sum of $4,250.00.

(3) Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the respondent to employ an advocate.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

MELBOURNE


WZ 259 of 2002

WAIX


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
Introduction

1. This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 17 September 2002. The decision was handed down on the following day. The Tribunal affirmed the decision of the delegate of the Minister not to grant a protection visa for the applicant.

2. The applicant is a citizen of Iran. He arrived in Australia (by boat) as an unlawful non-citizen in December 2000. He was interviewed by a Departmental officer approximately 9 days later.

3. In January 2001, the applicant lodged an application for a protection visa. That application was refused on 22 February 2001, and the applicant subsequently sought a review of that decision by the Tribunal. The application for review was forwarded to the Tribunal on 26 February 2001.

4. I accept the following statement of background facts and information contained in paragraphs 4 to 10 (inclusive) of the written submissions prepared by Mr Macliver on behalf of the respondent:

4. On 24 April 2001 the Applicant's adviser... forwarded a written submission in support of the Applicant's application to the Tribunal. On 26 April 2001 the Applicant's adviser forwarded to the Tribunal a translated letter from the Applicant's mother to his adviser.

5. The Applicant gave oral evidence to the Tribunal at a hearing on 27 April 2001. On 7 May 2001 the Applicant's adviser forwarded to the Tribunal a further submission and a translated letter from the Applicant's family lawyer in Iran.

6. On 9 May 2001 the Tribunal made a decision affirming the delegate's decision refusing to grant a protection visa to the Applicant. That decision was set aside by the order of Lee J made on 9 April 2002, and the matter was remitted to the Tribunal for re-determination.

7. On 27 June 2002 the Applicant's counsel provided the Tribunal with copies of translated letters from the Applicant's father and the Applicant's family lawyer in Iran.

8. A further hearing was conducted by the Tribunal on 4 July 2002, at which the Applicant again gave oral evidence. On 15 July 2002 the Applicant's counsel provided the Tribunal with a translated letter from the Applicant's witness...

9. On 17 September 2002 the Tribunal made a further decision again affirming the delegate's decision refusing to grant a protection visa to the Applicant.

10. The Applicant lodged an Application for an Order for Review with the Federal Court dated 5 October 2002 seeking review of the Tribunal's decision made on 17 September 2002...

Decision of the Tribunal

5. Once again, I accept the following summary of the Tribunal's decision as contained in paragraphs 15 to 18 (inclusive) of Mr Macliver's submissions:

15. The Tribunal firstly set out the relevant legislation and the definition of "refugee" in Article 1A(2) of the Refugees Convention. The Tribunal then referred to a number of decisions of the High Court in which the Court had considered that definition. The Tribunal then referred to the four key elements in the definition of refugee and set out various principles established by the High Court decisions. There was no error by the Tribunal in this aspect of its Reasons for Decision.

16. Under the heading of "CLAIMS AND EVIDENCE" the Tribunal set out the previous Tribunal's summary of claims made by the Applicant at different stages of the determination process, and stated that it was satisfied that this was an accurate summary of his claims. The Tribunal then set out claims made by the Applicant at the second Tribunal hearing held on 4 July 2002, but stated that it would only note the elements which were either additional or different from his previous statements.

17. Under the heading "FINDINGS AND REASONS" the Tribunal reached the following conclusions/findings:

(i) The Tribunal was satisfied that when the Applicant went to India in 1992 he was not subject to the adverse attention of the Iranian authorities.

(ii) The Tribunal was not satisfied that the Applicant was ever approached by the Iranian authorities in India, and did not accept that he had facilitated meetings of Iranian students. The Tribunal found that this latter claim was "an embellishment introduced at an opportune time to bolster his case."

(iii) In relation to the Applicant's imputed relations with the Mujahadeen, the Tribunal found, for the reasons which it had set out, that this was another embellishment on the Applicant's part provided through the letters from his mother and father.

(iv) The Tribunal was not satisfied that the authorities had reasons to target the Applicant for his activities in India and found it implausible that he would be issued with a new passport if there was any doubt about his political past.

(v) The Tribunal accepted that the Applicant was refused an operating licence for a pharmacy, but did not accept that the reason for that refusal was related to his real or imputed political opinion as manifested in his alleged activities in India, and found that the whole story of his arrest and detentions had been concocted.

(vi) The Tribunal did not accept that the Applicant was arrested and tortured as he claimed, and nor did it accept that he was ever required to report to the police. It found that the Applicant was not seen as anti-government.

(vii) In relation to the Applicant's departure from Iran, the Tribunal concluded that the Applicant had given contradictory evidence, and it also relied upon information from the Department of Foreign Affairs and Trade, and found that the Applicant left Iran legally.

(viii) The Tribunal concluded that the Applicant's ability to depart Iran legally indicated that he was not of adverse interest to the authorities; it did not accept that he was on a "black list", and would not have been able to leave Iran if he was; and if the Applicant had been of interest because of political crimes his name would have been on the "black list" and not on some lesser list of "suspected persons" not held at the airport.

(ix) In relation to the four letters from the Applicant's mother, father and the family lawyer, the Tribunal placed little weight on those letters because they were from interested parties and were produced or arrived after the delegate's decision, which indicated to the Tribunal that they were obtained for the purpose of bolstering the Applicant's claims with the Tribunal. The Tribunal set out its reasons for so concluding, and further concluded:

"The Tribunal finds that the letters have been produced for the express purpose of bolstering the [Applicant's] claims and that they do not reflect the truth. The Tribunal does not accept that the authorities came to the [Applicant's] family home after his departure and arrested the [Applicant's] brother and father."

(x) In relation to the statement by (the applicant's witness) regarding an alleged meeting between the Applicant, his father and the witness' family, the Tribunal accepted that there might have been a meeting, but it was not satisfied that the reason for, the content or the outcome of the meeting was as claimed.

(xi) In relation to the Applicant's claim that he had been imputed with participating in anti-regime behaviour as part of the student unrest, the Tribunal found that his visits to the university library would not have been sufficient to bring him to the adverse attention of the authorities or to lead to an association with the student movement.

(xii) The Tribunal found that the Applicant is not wanted by the authorities in Iran, that his return would not expose him to a real chance of persecution for the reason of imputed political opinion, and that it was satisfied that he had departed Iran legally and would therefore not face any persecution as a consequence of illegal departure. It found that he does not have a well- founded fear of persecution for a Convention reason should he return to Iran.

18. Having regard to the various findings and conclusions which it had reached, the Tribunal concluded that, having considered the evidence as a whole, it was not satisfied the Applicant was a person to whom Australia has protection obligations under the Refugees Convention...

Grounds for Review

6. The applicant's (amended) grounds for review -- as relied upon by Mr Ley (for the applicant) at the hearing -- are as follows:

1. The Tribunal did not have jurisdiction to make the decision.


Particulars
(a) The Tribunal asked the applicant why he was arrested on the first occasion, and why he was detained a second time, and relied on his answers, which were irrelevant, to find that he has concocted the evidence about his arrests.

(b) The Tribunal asked the applicant how his family knew that his brother was being held by authorities in Iran, and relied on his answer to that question to support a finding that his evidence was implausible when the applicant's answer to the question was irrelevant in that he had (no) direct knowledge of what occurred after he left Iran.

(c) The Tribunal suggested that there was an inconsistency in the applicant's evidence in that he had not previously said that his house in India was a meeting place for dissidents but had said that he knew very few Iranian students in India without referring to the precise occasions on which the applicant previously said that and without putting those occasions to the applicant during his evidence.

(d) The Tribunal relied on its own knowledge, or some other source, that Iran had an embassy in New Delhi and not anywhere else in India to support a finding that the applicant's evidence that he was approached by the Iranian embassy in Bombay in 1993 was untrue - without providing the source of the Tribunal's knowledge and without putting that as a fact to the applicant during his evidence.

(e) The Tribunal found that the applicant's evidence of his arrests and detentions had been concocted on the sole basis that his story about those matters was not internally coherent.

(f) The Tribunal placed no weight on letters received from the applicant's mother, the applicant's father and the lawyer for the applicant's family solely because they were from interested parties and were produced or arrived after the delegate's decision - from which the Tribunal concluded that they were obtained for the purpose of bolstering the applicant's claims. The Tribunal did not identify any probative material, or reasonable grounds, that permitted it to dismiss the letters in that way.

2. The Tribunal failed to comply with the principles of natural justice.

The Law

7. Pursuant to s.483A of the Migration Act, this Court has the same jurisdiction as the Federal Court in relation to a matter rising under the Act. Under s.475A, it has jurisdiction in relation to a `privative clause decision' that is a decision made on a review by the Tribunal. `Privative clause decision' is defined in s.474(2) and (3) of the Act. Section 474(1) of the Act limits review by the Court of privative clause decisions as follows:

A privative clause decision:

a) is final and conclusive;

b) must not be challenged, appealed against, reviewed, quashed or called into question in any Court; and

c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any Court on any account.

8. In NAAV v MIMIA [2002] FCAFC 228, the Full Court of the Federal Court held that s.474 must be construed in the same manner as the kind of privative clause considered in the decision R v Hickman; Ex parte Fox & Clinton (1945) 70 CLR 598. In other words, there were said to be three conditions which, if met, would ordinarily mean that a decision the subject of a provision such as s.474 would be valid. These are:

(a) the decision is a bona fide attempt by the decision-maker to exercise its power;

(b) the decision relates to the subject matter of the legislation; and

(c) the decision is reasonably capable of reference to the power conferred on the decision-maker.

9. There was also broad agreement in NAAV that the purported exercise of power must not be one that contravenes an inviolable limitation on the operation of the Act.

10. In Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, the High Court held that as a matter of construction the expression `decision... made under this Act' in s.474(2) "must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act."[1] If there has been a jurisdictional error, then the decision cannot properly be described as a decision made under this Act -- and is thus not a privative clause decision as defined in s.474(2) and (3). Further, a decision flawed due to failure to comply with the principles of procedural fairness was also said not to be a privative clause decision within s.474(2).

11. If there is no jurisdictional error affecting the Tribunal's decision, then the decision would be a privative clause decision and protected by s.474(1) -- unless it could be shown that one of the Hickman provisos had not been met.

12. In Plaintiff S157/2002, the High Court confined itself to a general statement of principle in relation to jurisdictional error, and the particular issue of jurisdictional error by reason of a denial of procedural fairness as asserted by the applicant in that case. The precise scope of the notion of jurisdictional error in this context, and the determination of which provisions in the Migration Act constitute inviolable limitations or restraints, may raise some complex issues[2] - but there is no need to consider such issues in the proceedings before the Court.

Questions Regarding Arrest and Detention -- Ground 1(a)

13. Mr Ley argued that the Tribunal's question of the applicant as to why he was arrested by the Iranian authorities in October 1999 (at least 18 months after his return from India to Iran in or about January 1998), and not at a time closer to his return to Iran, was "extraordinary". Mr Ley's submission, was, in effect, that nobody could answer a question of that nature.

14. Similarly, Mr Ley attacked the Tribuanl's question of the applicant as to why he was arrested and detained on a second occasion (approximately 3 months later -- in early 2000).

15. Mr Ley submitted that the Tribunal relied on the applicant's answers to these questions to find that he had concocted the evidence about his arrests. Mr Ley argued that there was no basis upon which the Tribunal could conclude that the evidence was concocted.

16. In my opinion, the Tribunal's questions of the applicant, and the use made of his responses to those questions, were unexceptionable. The Tribuanal's conclusion in relation to this subject appears at CB 198 and is as follows:

The Tribunal accepts that the applicant was refused an operating licence for a pharmacy in his home town... The Tribunal does not accept that the reason for such a refusal was related to the applicant's real or imputed political opinion as manifested in his alleged activities in India. The Tribunal finds that the whole story of his arrests and detentions has been concocted. In summary, the reason for this finding is that the story is not internally coherent. The Tribunal has already made findings about the applicant's activities in India.

The applicant stated that he applied for a government loan to set up his pharmacy; this was apparently approved without any security checks because the applicant claims that these only occurred after the 'technical' approval for the pharmacy to go ahead.

The applicant has not credibly explained why the interest of the security forces would have been ignited only at a point some eighteen months after his return to Iran given his claimed activities in India. A finding in this regard has been made in the previous section. (emphasis added)

The applicant does not claim to have engaged in any political or other activity inimical to the government from the time he returned to Iran, and claims that the interest in him and his presumed activities in India was triggered by his application to operate a pharmacy.

The applicant's statement that he was released without charge when he was arrested the first time casts doubt on his claim that he was arrested at all for political reasons. The crime which he states he was accused of - associating with opposition groups -would not have made his release a consideration, as the applicant himself indicated at the second hearing.

The Tribunal thus does not accept that he was arrested and tortured as claimed, nor does the Tribunal accept that he was ever required to report to the police. The Tribunal finds that the above factors indicate that he was not seen as anti-government.

17. In "the previous section" of its decision[3], the Tribunal reached the following conclusion:

The (Tribunal) is not satisfied that the authorities had reasons to target the applicant for his activities in India: upon his return to Iran, he was not approached in any manner for a claimed year and 10 months and he was able to obtain a new passport without problem or incident at the beginning of 1998, soon after his return. The (Tribunal) finds it implausible that he would be issued with a new passport if there were any doubt about his political past.[4]

18. In my opinion, there was ample evidence before the Tribunal to support the conclusions referred to above. Mr Ley's focus -- in the context of the plethora of information before the Tribunal in the circumstances of this case -- amounts to no more than a thinly disguised attempt to re-examine the merits of the Tribunal's decision. As McHugh J said in Re: MIMA; Ex parte Cohen (2001) HCA 10 at [37]:

If an administrative Tribunal applies a wrong legal test or asks itself or decides a wrong legal question, it may be a short step to concluding that it did not decide the question that it had to decide. But questions of fact are ordinarily for an administrative Tribunal to determine and so are the reasoning processes employed to make such findings. Disagreement with a finding of fact or the reason or process used to find it is usually a slender ground for concluding that a Tribunal misconceived its duty.

Question Regarding Family's Knowledge -- Ground 1(b)

19. The Tribunal's reference to the applicant's brother was in the context of the weight to be given to four letters -- one from the applicant's mother, one from the applicant's father and two from the family's lawyer. The letters were all received after the applicant's departure from Iran.

20. The reference to the family's knowledge of the detention of the applicant's brother appears in the following paragraph (CB 192-3):

On the question of his mother's letter (which is not dated) the applicant stated that he received it last year but does not remember the date when it was received; he stated that it was during the period when his application was being considered by the Tribunal. The applicant provided the Tribunal with a letter from his father and another letter from the family lawyer. He stated he received his father's letter on 20 May 2002 and the lawyer's letter was received on 22 May 2002. The Tribunal asked the applicant how the family knew that his brother was being held. He stated that his brother was arrested after December 2000. He stated that this was not the incident in Isfahan but that the event described by his mother had occurred after he had left Iran. He remembers getting the letter after the intervention of his case officer had finished. He stated that the incident happened when he was in Malaysia, not immediately after he arrived there but he found out when he contacted his sister in Shushtar.

21. The Tribunal's conclusion regarding the weight to be attributed to the four letters appears at CB 201-3, and is as follows:

The information which the Tribunal has of events following the departure of the applicant from Iran is provided by four letters, one from the applicant's mother, one from the applicant's father and two from the family lawyer. The Tribunal places little weight on these letters because they are from interested parties and they were produced or arrived after the delegate's decision (22 February 2001), which indicates to the Tribunal that they were obtained for the purpose of bolstering the applicant's claims with the Tribunal. They have no precise references to the facts they purport to describe and they refer to the same events but are not consistent in their recounting of them. The Tribunal considers it significant that the letters were addressed and perhaps faxed to the adviser rather than to the applicant himself. The applicant denied at the hearing that the letters had been requested by him, however the Tribunal finds this response implausible as it does not explain why there would be not one but two 'spontaneous' letters from the family lawyer from a city 128 km away from where the applicant's parents are and that each purports to update on the situation of the applicant's brother. There is no reason to assume that the family lawyer... would have been aware of the whereabouts of the applicant or of the address of his adviser and took it upon himself to write those letters, hitting upon precisely the kind of information that would be suited to the applicant's application for a Protection Visa and at the suitable juncture in the process. Thus the timing of these letters is considered significant by the Tribunal.

The applicant's mother's letter is undated and states that "they" were looking for (the applicant) and that they showed her a photograph of the applicant with a friend in India and that this shows that the applicant is a collaborator of the mujahadeen; it further states that the applicant's leaving Iran is interpreted by the authorities as his having participated in the student uprising. The applicant's mother indicates that the incident of the authorities looking for her son, the applicant, occurred ''as he left", this would have been early November 2000. At the hearing the applicant stated that his father and brother were arrested "after December 2000". This is contradicting his mother's letter.

His father's letter is also undated and it indicates that the applicant could not return to Iran during his studies in India due to some political problems with the Iranian consulate. The applicant has made no mention of this nor of his intention to leave India during the period of his studies. The letter avoids any reference to any period of time and, being undated, the Tribunal cannot derive anything other than a purported sequence of events rather than a time frame when these occurred. The applicant's father also states as the reason for his son's departure that he found out that the authorities had prepared "a heavy case" against his son and they were soon going to arrest and execute him. The Tribunal finds these speculations on the part of the applicant and his father about a possible motive for (further) harm to him implausible; it would seem, and the Tribunal reiterates, that had the applicant been detained, either lawfully or otherwise, for a real or imputed or concocted crime of the kind claimed, it is implausible that he would have been released, and that he would have been released twice.

The lawyer's statements represent second hand accounts of events allegedly taking place in another city some 128 kilometres away; the Tribunal does not accept the statement made in both letters by the lawyer that he is not able to present any evidence because of the security problems. He has, in fact, sent two faxes, which by themselves could have at least alluded to what evidence he might have.

The Tribunal finds that the letters have been produced for the express purpose of bolstering the applicant's claims and that they do not reflect the truth. The Tribunal does not accept that the authorities came to the applicant's family home after his departure and arrested the applicant's brother and father.

The statement provided by (the witness) describes an alleged meeting between the applicant, his father and the witness' family in December 1999. No further particulars about the date are given. It is essentially a statement intended to indicate that the applicant had an adverse profile with the authorities. This meeting took place allegedly after the first claimed detention. The fact that the information, apparently obtained through a single telephone call by the witness' brother, indicated that the applicant was suspected of doing something contrary to the regime while in India, does not sit well with the claim that the applicant was detained after that time but was again released without charge. The Tribunal accepts that there might have been a meeting among the persons indicated but it is not satisfied that the reason for, the content or the outcome of the meeting was as claimed.

22. Mr Macliver submitted, and I accept, that it is not clear that the Tribunal reached any conclusion in reliance upon the applicant's answer to the question referred to by Mr Ley in ground 1(b). Once again, I am of the opinion that there was ample evidence before the Tribunal to support the conclusions referred to in the passages (from CB 201-3) quoted above. Mr Ley's focus on the specific question referred to in ground 1(b) amounts, once again, to a thinly disguised attempt to re-examine the merits of the Tribunal's decision.

Inconsistency Regarding Use of House in India as a Meeting Place for Dissidents -- Ground 1(c)

23. In my view, this ground is also without foundation. The applicant gave oral evidence to the first Tribunal in July 2002 (CB 181). The second Tribunal was satisfied that the first Tribunal's summary of the applicant's claims was accurate. The summary appears at CB 181-5.

24. The first Tribunal's summary of the applicant's evidence regarding the house in India appears at CB 183 and is as follows:

Asked where he was located in India, the applicant says it was in Dharwad..., south of New Dehli. The closest Iranian mission was in Bombay. At the beginning of 1993 he received a letter from the Consulate in Bombay asking him to go and see them. They gave him forms to fill out so that when they needed his cooperation they could obtain it. He was told to get to know the other Iranian students and find out if they were with the opposition. Asked whether there were Iranian opposition groups in India, the applicant said yes, but he did not have anything to do with them. There were some Iranians in Dharwad. Asked if he socialised with them, the applicant said that he did sometimes, for example around New Year. Asked how many Iranian students there were, he said about six. There were more (about 25) in another city about 35 kilometres away. There were also Iranian residents there, considered by the locals to be financially well off. He often went to this other city. It had more facilities... Asked about his accommodation, he said he rented a room locally.

25. The first Tribunal continued (at CB 183-4):

The applicant was asked what was the response when he had told the Iranian representatives that he would not cooperate with them as requested. He said he was told it would not be good for his future. He did not know if the other students were spying on each other. Asked if he thought about this while socialising with them, he said sometimes he would forget. He did not discuss politics with them: it was dangerous to do so.

26. The second Tribunal referred to the applicant's evidence in relation to this subject in a passage at CB 191-2:

When asked what it was that he did in India he stated that he was renting a large house and most of the time Iranian students were congregating there. His house was the centre for these meetings and most students were those who had been denied entry to further study in Iran because of their opposition to the regime. The Tribunal put to the applicant that previously he had not specified that his house was a meeting place for dissidents. Indeed he had said that he knew very few Iranian students. He replied that he had stated this before.

27. The Tribunal's conclusion in relation to this subject appears at CB 196-7. It is as follows:

In the present case it needs to be established whether the applicant's activities in India could plausibly give rise to the behaviour of the security forces in Iran towards the applicant as alleged. The applicant has connected the views of the security forces with his stay in India in the following manner: he has stated that he was approached by the Iranian Embassy in Bombay in 1993 and invited to go there. When he went there he was asked to supply information to the authorities about the activities of other Iranian students in India. He refused to do this. It is also noted that Iran at that time (and to this day) had an embassy in New Delhi and not anywhere else in India (even though the applicant continues to refer to the embassy in Bombay, the Tribunal assumes that he means the Consulate).

The applicant's story in relation to his being approached by the Iranian authorities in India is inconsistent in a number of key elements. Firstly he had said that the closest Iranian mission was in Bombay and he had been asked in a letter, in the first half of 1993, to go to Bombay. Then he stated he did not go to Bombay except on his way in and out of India. Later he said that the consulate responsible for the area he was living in was Hyderabad. He outlined the nature of the contact and said that he was treated in a welcoming manner by the Ideology and Political section of the consulate. He did not know the title or the name of the person he saw but indicated that he was in charge of this section. He was asked to get to know other Iranian students and find out whether they were with the opposition. He stated he had nothing to do with Iranian opposition groups in India. The applicant was not able to indicate which opposition groups they were speaking of. He was asked to provide all information about the students. The applicant stated that he never went back to the consulate except to renew his passport and never heard from the consulate again about its wish that he report on other students. At the second hearing he stated that he renewed his passport in 1995 in Hyderabad.

In relation to his familiarity with other students, firstly he said that he socialised with other Iranian students sometimes, for example around New Year. He stated that there were about six Iranian students in Dharwad and about 25 in another city 25 kilometres away. He said he rented a room locally. Later he said that the house he was living in had a number of other Iranian students in it who often discussed politics. At the second hearing he stated that he rented a large house and most of the time Iranian students were congregating there. His house was the centre for meetings and most students who were there were those who had been denied further study in Iran because of their opposition to the regime. The Tribunal put to the applicant that previously he had not specified that his house was a meeting place for dissidents, indeed he had said that he knew very few Iranian students. He replied that he had stated this before.

In light of the above sets of evidence in relation to the applicant's dealings with the Iranian mission(s) in India and the matter of his relationship to other Iranian students in India the Tribunal is not satisfied that the applicant was ever approached by the Iranian authorities in India. It finds it implausible that the approach would be made in the manner described and that the applicant would be so vague in terms of whom he saw and indeed where he actually went. The applicant's history of contact with other students in India has been augmented at every iteration, from the presence of about six students to his becoming the provider of a large house where the students gathered to discuss politics. The Tribunal does not accept that the applicant facilitated meetings of Iranian students; the Tribunal finds this to be an embellishment introduced at an opportune time to bolster his case. The Tribunal also finds it significant that the Iranian embassy/consulate did not contact the applicant again after the first alleged letter in 1993. The Tribunal notes that the applicant remained in India until 1998. The Tribunal finds it implausible that if the Iranians were serious about having the applicant 'spy' for them they would not have pursued the issue; the Tribunal also finds it implausible that the Iranian authorities would have allowed the applicant to continue his studies undisturbed for another five years when he refused to cooperate with them, especially given the applicant's statement at the second hearing that the embassy/consulate told him that his refusal would mean that his future was in jeopardy.

28. In my opinion, there was ample evidence before the Tribunal to support the conclusions referred to above. Mr Ley has again attempted to persuade the court to engage in impermissible merits review.

Iranian Embassy in Delhi -- Ground 1(d)

29. In my opinion, the passages from CB 196-7 quoted in paragraph 27 above demonstrate that this ground is without substance. The Tribunal recognised that although the applicant referred to the Iranian Embassy in Bombay, he clearly intended to refer to a Consulate.

30. This ground also invites this court to enter into impermissible merits review.

31. In my opinion, no discernible error has occurred, and it cannot be fairly alleged that the Tribunal had denied the applicant procedural fairness.

Arrests and Detentions -- Ground 1(e)

32. In my opinion, this ground is not significantly different from ground 1(a). The Tribunal's conclusion that the applicant's story of his arrests and detentions has been concocted and was not internally coherent does not stand alone. The passage from CB 198 quoted in paragraph 16 above puts the finding in its proper context.

33. This ground, too, amounts to an attempt to persuade the court to enter into impermissible merits review.

Weight to be Attributed to Letters -- Ground 1(f)

34. I have already referred to the Tribunal's conclusion regarding the weight to be attributed to the letters (see paragraph 21 above).

35. The thrust of Mr Ley's submission in relation to this ground is that the second Tribunal has, in effect, erred - in the same way as did the first Tribunal in its handling of the weight to be attached to the letters. Mr Ley pointed to the following passages from the judgment of Lee J in W195/01A v MIMIA (appearing at CB 127-153):

... the content and substance of the mother's letter... had to be addressed and considered, and unless there was probative material or reasonable grounds for rejecting that material, the possibility that the events described by her had occurred had to be taken into account by the Tribunal in determining if there was a degree of chance if events involving persecution of the applicant may occur in future.

The Tribunal could not make a bare assertion that the letter from the applicant's mother was "contrived". As stated by the United State Court of Appeals in Bastanipour v Immigration and Naturalisation Service... :

"A bare conclusion is not an adequate discharge of an administrative agency's responsibilities unless the ground or argument that it is rejecting is frivolous."

There was no basis on which the Tribunal could find that the applicant's mother had provided a false account, and insofar as the Tribunal made any finding by stating that it "(did) not accept that the contents of the applicant's mother's letter (were) true", the Tribunal did not identify any probative material, or reasonable grounds, that permitted the Tribunal to state that the mother had supplied a fabricated account in her letter...[5]

36. Lee J continued:[6]

... this was not a case where there was material before the Tribunal that revealed that the claims in the mother's letter (and) the lawyer's letter... were patently false. The effect of the failure of the Tribunal to consider and assess that material was a failure by the Tribunal to duly consider the applicant's case and failure to conduct the appropriate inquiry on that material by way of review as required by the Act...

The fact that the letter from the family lawyer was received "a week after the hearing" had no significance on the truth of its content. Why the Tribunal considered it did is unknown. The only ground provided for dismissing the contents of the letter from the Tribunal's consideration was that the lawyer was "not sufficiently disinterested". The Tribunal should have instructed itself that, in law, the applicant's case did not depend upon the applicant providing material from an independent source, nor did the process engaged in by the Tribunal place an onus on the applicant to establish that he was truthful...

37. His Honour's conclusion in relation to the letters was as follows:[7]

43. The Tribunal does not find the applicant to be an untruthful person by reason of demonstrated dishonesty or by reference to his demeanour. The reasons provided by the Tribunal are directed to showing why the Tribunal remained unpersuaded by the applicant's claims as to past events. The Tribunal does not make an affirmative finding that claimed events did not occur. Where the Tribunal states that it "does not accept" that events occurred as claimed, it is stating that it has not been persuaded that such events occurred, or, at its highest, that it believed that the events probably did not occur.

44. But as discussed below, that did not entitle the Tribunal to ignore thereafter the material submitted by the applicant when the Tribunal moved to assess whether there was some degree of possibility that, in the future, events involving persecution of the applicant may occur.

45. As set out in Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 by Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 574-576, the Tribunal had to assess whether the account provided by the applicant's mother, the applicant's witness and the family solicitor raised the possibility that events involving the applicant and his family had occurred as described by them, and whether the possibility that these events had occurred could suggest that a chance of persecution faced the applicant if he were returned to Iran. The possible occurrence of the past events had to be part of the process of determining whether there was a chance that events may occur in future that could have persecutory consequences for the applicant. It was not necessary at law that the Tribunal conclude affirmatively that events claimed by the applicant had occurred before it was obliged to take that material into consideration in making its decision. The Tribunal had to consider whether it was possible that the claimed events occurred, even if the Tribunal did not have an affirmative belief that the events had occurred or even if it believed they had not occurred. Only if the Tribunal, on probative material or reasonable grounds, had rejected that material, could the Tribunal put that material beyond its consideration.

38. His Honour ultimately found that the Tribunal had ignored a substantial part of the applicant's case. His Honour said, however, that:[8]

... it could do so if that material had be rejected by the Tribunal after due consideration, but it could not dismiss the material on intuition or inclination.

39. Mr Ley argued that the (second) Tribunal treated the circumstances of the receipt of the letters as being more important (and, perhaps, relevant) than the contents of the letters. He argued that, in effect, there were no reasonable grounds for the Tribunal rejecting the letters, or failing to give them significant weight.

40. Mr Macliver argued that the comments made by Lee J should not be taken out of context, and that they apply to a different set of reasons (being the reasons provided by the first Tribunal). Further, Mr Macliver submitted that the (second) Tribunal's reasons should be read as a whole.

41. There is much to Mr Macliver's submissions. Contrary to the situation confronting Lee J --

a) The "content and substance" of all the letters were addressed and considered.

b) The Tribunal's use of terms such as "weight", "consistency", "implausibility" and "second hand accounts" reveal that the Tribunal also addressed and considered the possibility that the events described in the various letters had occurred.

c) The discussion regarding the weight to be attributed to the letters on pages 201 and 202 of the Court Book cannot fairly be described as a "bare conclusion".

d) The Tribunal gave reasons for placing little weight on the letters -- including that they "... have no precise references to the facts they purport to describe and they refer to the same events but are not consistent in their accounting of them".[9]

e) Even if this were not a case where there was material before the Tribunal that revealed that the claims in the letters were patently false, the fact of the matter is that the Tribunal considered and assessed the material in the letters (and thereby duly considered the applicant's case).

f) The Tribunal was clearly aware that the applicant had sought review of the (first) Tribunal's decision by the Federal Court, and that Lee J had set aside the decision and remitted the matter to be decided according to law. It was also aware that the matter was before the (second) Tribunal pursuant to the order of the Federal Court.[10] As a result, it cannot be assumed that the Tribunal was unaware of the contents of Justice Lee's judgment, and his Honour's comment to the effect that the (first) Tribunal "... should have instructed itself, that in law, the applicant's case did not depend upon the applicant providing material from an independent source; nor did the process engaged in by the Tribunal place an onus on the applicant to establish that he was truthful".[11]

g) Although the reasons provided by the (second) Tribunal may be directed to showing why it remained unpersuaded by the applicant's claims as to past events, the (second) Tribunal -- unlike the first Tribunal -- did make affirmative findings that claimed events did not occur.

h) The (second) Tribunal did not ignore any of the material submitted by the applicant.

i) The possible occurrence of the past events described by the applicant (and referred to in the letters) was clearly part of the process of determining whether there was a chance that events may occur in the future which could have persecutory consequences for the applicant. The (second) Tribunal did consider whether it was possible that the claimed events occurred. It concluded that they had not.

j) It cannot fairly or reasonably be submitted that the (second) Tribunal dismissed the evidence presented by the applicant "on intuition or inclination".

Conclusion

42. Overall, I am unable to identify any basis upon which the Tribunal's decision can be interfered with. The Tribunal acted in good faith, its decision is reasonably capable of reference to the power given to it, its decision relates to the subject matter of the legislation and there can be no suggestion that any relevant constitutional limits were exceeded. In my opinion, there can be no suggestion of bias (whether actual or apprehended). Further, there is no apparent breach of procedural fairness which amounts to jurisdictional error. The applicant gave evidence before the Tribunal (on two occasions). It has not been suggested that he did not understand the proceedings in which he was involved -- and, in my opinion, the Tribunal clearly understood the applicant's case.

43. In my view, the findings of fact contained in the Tribunal's decision, and the conclusions drawn from those facts, were reasonably open to it.

44. I am conscious of the observations of Spigelman CJ in Bruce v Coles (1998) NSWLR 163, where his Honour said:

In cases which engage the sense of compassion of a judge..., it is necessary to avoid the temptation to express a conclusion in terms of one of the recognised grounds for judicial review, whilst in truth making a decision based on the merits. In a democratic society, such conduct transgresses the proper limits of judicial intervention...

45. The fact of the matter is that Mr Ley's arguments amounted to nothing more than an attempt to review the Tribunal's decision on its merits. But no basis for review exists (even if a privative clause did not exist) simply because the court disagrees with the weight given by the Tribunal to various factors relevant to its decision. Nor can the court set aside a decision merely because it regards the Tribunal as having followed a process of logical reasoning with which the court has discomfort. The Tribunal's process of reasoning (leading to a finding of fact) is not reviewable simply because the court may disagree with it -- even if it considers that it was illogical or unreasonable to attribute weight to a factor (or to fail to attribute weight to another factor).

46. For the proceeding reasons, the grounds for review must fail and the application must be dismissed with costs (which I shall fix in the sum of $4,250.00).

I, Paul O'Halloran, certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate:

Date: 27 October 2004


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[1] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ, and also see [19] per Gleeson CJ and [163] per Callinan J

[2] see, for example, Re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S134/2002 [2003] HCA 1 -- in relation to s.65 of the Migration Act

[3] See highlighted section in the above quotation.

[4] CB 197.

[5] CB 148.

[6] CB 149.

[7] CB 150.

[8] CB 151-2.

[9] CB 201.

[10] CB 179.

[11] CB 149.
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