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Cases

MIGRATION – application to Federal Magistrates Court for prerogative writs to quash decision of Refugee Review Tribunal that appellant not be granted a protection visa – Tribunal not satisfied that material corroborating appellant’s claims was not fabricated – no relevant findings of fact – role of Tribunal in conducting a review under the Migration Act.

WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004]

WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 74 (29 March 2004)
Last Updated: 29 March 2004

FEDERAL COURT OF AUSTRALIA


WAIJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 74


MIGRATION – application to Federal Magistrates Court for prerogative writs to quash decision of Refugee Review Tribunal that appellant not be granted a protection visa – Tribunal not satisfied that material corroborating appellant’s claims was not fabricated – no relevant findings of fact – role of Tribunal in conducting a review under the Migration Act.



Migration Act 1958 (Cth) ss 13, 14, 36(3)-(7), 65(1), 189, 196, 414, 415, 416, 430, 474
Federal Court Rules O 80



Constitution s 75(v)



Abebe v Commonwealth (1999) 197 CLR 510 cited
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited
Chan Yee Kin v Minister For Immigration and Ethnic Affairs (1989) 169 CLR 379 cited
Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 cited
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 cited
Hill v Green (1999) 48 NSWLR 161 cited
Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 cited
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 cited
Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 cited
Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited
Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited
Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 cited
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 cited
NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 298 referred to
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 referred to
R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242 cited
WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 cited
WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 cited
WAGU v Minister For Immigration And Multicultural And Indigenous Affairs [2003] FCA 912 cited
WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 cited
W157/00A v Minister for Immigration & Multicultural Affairs (2001) 190 ALR 55 cited



G Coffey "The Credibility of Credibility Evidence at the Refugee Review Tribunal" (2003) 15 International Journal of Refugee Law 377













WAIJ V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
W 5 OF 2003


LEE, MOORE AND RD NICHOLSON JJ
29 MARCH 2004
PERTH


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W5 OF 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT


BETWEEN: WAIJ
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT
JUDGES: LEE, MOORE AND RD NICHOLSON JJ
DATE OF ORDER: 29 MARCH 2004
WHERE MADE: PERTH


THE COURT ORDERS THAT:



1. The appeal be allowed.


2. The orders made by the Federal Magistrates Court on 23 December 2002 be set aside and in lieu thereof it be ordered that:


"1. A writ of certiorari issue and the decision of the Refugee Review Tribunal made 29 July 2002 be quashed.

2. A writ of mandamus issue and the Tribunal be directed to review the decision of the respondent made by his delegate on 21 March 2001.

3. The respondent pay the applicant’s costs."


3. The respondent pay the appellant’s costs.











Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W5 OF 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT


BETWEEN: WAIJ
APPELLANT
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: LEE, MOORE AND RD NICHOLSON JJ
DATE: 29 MARCH 2004
PLACE: PERTH


REASONS FOR JUDGMENT


LEE and MOORE JJ:

1 This is an appeal from a judgment of the Federal Magistrates Court which dismissed an application by the appellant under s 483A of the Migration Act 1958 (Cth) ("the Act") for judicial review of a decision of the Refugee Review Tribunal ("
;the Tribunal&
quot;). In that decision the Tribunal determined that the appellant was not entitled to the grant of a protection visa under the Act. The appeal involves an issue that arises frequently in proceedings in this Court, namely, findings by the Tribunal that claims made by an applicant in support of an application for a protection visa are not credible. (See: G. Coffey: "The Credibility of Credibility Evidence at the Refugee Review Tribunal" (2003) 15 International Journal of Refugee Law 377).

2 On the hearing of the appeal it was conceded by the respondent ("the Minister") that the learned Magistrate had erred in following a decision of the Full Court of this Court (NAAV v Minister for Immigration & Multicultural & Indigenous Affairs (2002) 123 FCR 298) which held that the "privative clause decision" provisions of s 474 of the Act had ousted judicial review in all but exceptional cases. The subsequent decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 held NAAV to have been wrongly decided. S157/2002 determined that a decision of the Tribunal affected by "jurisdictional error" was not a "privative clause decision" within the meaning of that term as used in s 474 of the Act and that such a decision was subject to judicial review by constitutional or prerogative writs. The Minister contended, however, that notwithstanding that the learned Magistrate had misdirected himself on the law, the appellant was unable to show that the decision of the Tribunal was affected by "jurisdictional error" and, therefore, the appeal must fail.

3 Before turning to the principal issue in the appeal it is necessary to set out a short history of the matter and the effect of legislative provisions which govern the operation of the Tribunal.

4 The appellant is an Iranian national who departed Iran with her two daughters, aged 12 and 7, in early July 2000. She left a husband and a 19 year-old son in Iran. They flew to Malaysia and then travelled to Indonesia where they moved from place to place over several months. They embarked on a small vessel which sailed from Indonesia and entered the Australian "migration zone&quo;
t; on 1 October 2000. All three were infected with malaria and the appellant was seriously ill. When they entered the "migration zone" they did not hold visas issued under the Act. Sections 13 and 14 of the Act deemed each to be an "unlawful non-citizen" and pursuant to ss 189 and 196 of the Act they were taken to a place of "immigration detention", namely, Curtin detention centre in north-west Australia. All have remained in detention thereafter.

5 On arrival the appellant was taken to the detention centre medical unit where medical treatment was administered for the next seven to eight days. On 11 October 2000 a departmental officer conducted an "entry" interview with the appellant. The appellant did not speak English and the services of a Farsi-speaking interpreter were required.

6 On or about 26 February 2001 the appellant signed an application for a "protection visa", prepared on her behalf by a migration agent. On 21 March 2001 a delegate of the Minister refused the application for a visa and the appellant sought review of that decision by the Tribunal. On 12 April 2001 the appellant appointed another migration agent, who was also a legal practitioner, to assist her. On 14 May 2001, that agent forwarded a submission in support of the appellant’s application for review. Enclosed with the submission were two documents forwarded from Iran. One document was said to be a letter to the appellant from her sister and the other a notice of dismissal issued by the appellant’s former employer in Iran forwarded by the sister by facsimile transmission, presumably to the office at the detention centre. The documents were in Persian script. No translation was forwarded to the Tribunal.

7 On 21 May 2001 the Tribunal conducted a hearing at which the appellant responded to the Tribunal’s questions through an interpreter. The two documents were not discussed at that hearing. On 21 August 2001 the Tribunal determined that the grant of a visa should be refused. The reasons for that decision provided by the Tribunal did not refer to the documents.

8 In about September 2001 the appellant applied to this Court for judicial review of the Tribunal’s decision. Pursuant to O 80 of the Federal Court Rules the Court appointed pro bono counsel to represent the appellant. On 4 April 2002 an order was made by a Judge of this Court (RD Nicholson J), by consent, that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for reconsideration. It was a term of the order that the Tribunal give due consideration to the foregoing documents.

9 The Tribunal, differently constituted, arranged another hearing at which the appellant was invited to answer the Tribunal’s questions. Shortly before the hearing the Minister assigned the Refugee Advice and Casework Service to act as agent for the appellant. The second Tribunal hearing took place on 26 June 2002 and it was not until then that the two documents were translated. An interpreter assisting the Tribunal provided an oral translation of the documents in the course of the hearing and written translations were obtained by the Tribunal thereafter.

10 According to the translation of the notice, which is not set out herein to avoid identifying the appellant, the employer terminated the service of the appellant "because of your illegal political activity offence". The document on its face bore the emblem of the employer, a national company, and seals and signatures of several officers.

11 The translation of the letter from the sister read as follows:


‘With greetings and compliments to my dear sister, I hope you are well and under the shelter of the Almighty you continue to live your life. Dear sister, believe me that I miss you and your children so much that I cannot write to you how I feel, but I only say that I am very sad and depressed to be so far away from you. I kiss you and your children from far away. I want you to look after yourself and the children. Believe me that your place is empty here with us. With every bite of bread that we eat, I remember you, wether (sic) they give you food or you are hungry. Although it has been a long time that I have not seen you and I miss you very much, but I forbear the pain of being far away from you. I just want you not to return to Iran. Because whatever afflictions your husband has received from this oppressive Iranian regime in your absence, they will do the same to you.

Dear sister, after your escape from Iran, they arrested your husband, [...]. They harmed and tortured him for two months and they questioned him about you. They asked him where you had gone and with who you had connections. After two months that they released him, we saw the marks of torture that this Godless regime has inflicted to his body. Poor [...] has suffered so much. When I saw him I could not bear it and I started crying. But what is the use? They had no conscience. It makes no difference to them who the person is. To achieve their objective and purpose they persecute and torture anyone. For this reason I want you to swear to God that you will not try to return to Iran, because I cannot bear and tolerate that you suffer or get killed. When [...] was released after two months, he decided to escape from the country, but they arrested him again. We have not heard from him since then. For the same reason I ask you not to return to Iran and look after your children. Incidentally we have no news from [...] either. He was supposed to do his military service after you left. He contacted us by telephone several months ago, but it has been months since we have not heard from him. We don’t know what has happened to the poor fellow. My mother said, "you have become homeless, but [...] is here." But now she cries for him everyday and night and she says, "Dear [...] I will not see you ever again."
; I pray to God that he cuts them from the roots, as they created such a destiny for you and your family. Dear sister, I will not take any more of your time, and I hope one day we can gather together like the old times. Kiss the children for me.

Your sister
[Signature]’

12 On 29 July 2002 the Tribunal determined that the appellant was not entitled to the grant of a protection visa. In the reasons for decision provided by the Tribunal pursuant to s 430 of the Act the Tribunal stated as follows in respect of the two documents:

‘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 straightforward 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.’

13 An application to the Federal Magistrates Court for judicial review of the Tribunal’s decision was filed in August 2002. The appellant was represented by pro bono counsel on the hearing of that application. The application was dismissed by the learned Magistrate on 23 December 2002. His Honour’s reasons recorded, however, that the Tribunal’s treatment of the documents amounted to a failure by the Tribunal to consider relevant material in the performance of its decision-making function, and it appears that his Honour would have made the orders sought by way of judicial review if the decision had not been protected by the &
quot;privative clause decision" provisions of s 474 of the Act. His Honour stated as follows:

‘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 provided 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."
...

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 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 (sic).’

14 In the appeal to this Court the appellant was represented by pro bono counsel appointed by the Court. The essential grounds of the appeal were that the learned Magistrate erred in law in applying NAAV and that his Honour should have held that the Tribunal’s decision was affected by jurisdictional error in that the Tribunal did not accord procedural fairness to the appellant. Counsel submitted that the review by the Tribunal was procedurally unfair in that material presented by the appellant relevant to the appellant’s case was disregarded by the Tribunal.

15 Determination of the latter point requires analysis of the function of the Tribunal.

16 Under ss 414 and 415 of the Act, upon a valid application for review being made the Tribunal must review the decision to which the application refers. For the purposes of that review the Tribunal may exercise all powers and discretions available to the original decision-maker and under s 424 may obtain any further information it considers to be relevant. Section 420 requires the Tribunal to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. However that obligation arises in a statutory context where specific powers are conferred on the Tribunal. No doubt the legislature intended that those specific powers could be exercised without necessarily frustrating the statutory objective identified in s 420. The Tribunal is empowered by s 427(1)(d) to require the Secretary to the Minister’s Department to make investigation and report upon that investigation to the Tribunal. Undoubtedly that would permit the Tribunal to have the Secretary cause enquiries to be made in other countries through use of official channels, if a case required it. It is a power that the Tribunal might have exercised in this case to obtain further information concerning the authenticity of the letters. There is nothing in the papers before us which suggests it considered doing so. Whether the power should be exercised in a particular case will be a matter for the Tribunal. More generally, the Tribunal, subject to a qualification provided in s 416 that is not relevant in this case, is required to consider all relevant material and after having regard to that material make the necessary findings of fact required to support the determination made by the Tribunal.

17 The principal criterion for the grant of a protection visa under the Act is that the applicant have a well-founded fear of persecution for reason of race, religion, nationality, membership of a particular social group or political opinion. A fear of persecution is a well-founded fear if it is shown by the nature of past events, and/or the prospect that such events may occur in future, that there is a risk that the applicant may suffer persecution if returned to the country of nationality. The risk so described is one that is real and not fanciful. It is not a requirement that the risk be measurable as to degree of likelihood or probability. (See: Chan Yee Kin v Minister For Immigration and Ethnic Affairs (1989) 169 CLR 379 per McHugh J at 417).

18 The role of the Tribunal in conducting a review under the Act is to assess whether the material presented indicates that there is a real possibility that if the applicant were returned to the country of nationality events involving the applicant may occur which would constitute persecution of the applicant. If so, the Tribunal will be satisfied that the applicant qualifies for the grant of a visa and, pursuant to s 65(1) of the Act, must grant the visa applied for, subject, of course, to the qualifications now contained in s 36(3)-(7) and subdivisions AK and AL of Division 3 of Part 2 of the Act. If the material does not show that such a risk exists the visa must be refused.

19 In carrying out that assessment, involving as it does a determination of great importance to an applicant, the Tribunal must act "judicially" and according to law. In so acting the Tribunal does not exercise judicial power, but by reason of the importance of its task, the Tribunal must observe the "practical requirements of fairness" appropriate for the exercise of judicial power. As Sedley J stated in R v Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 WLR 242 at 258:

‘In the modern state the decisions of administrative bodies can have a more immediate and profound impact on people’s lives than the decisions of courts, and public law has since Ridge v Baldwin [1964] AC 40 been alive to that fact. While the judicial character of a function may elevate the practical requirements of fairness above what they would otherwise be, for example by requiring contentious evidence to be given and tested orally, what makes it ‘judicial’ in this sense is principally the nature of the issue it has to determine, not the formal status of the deciding body.’

20 While the expression "acting judicially" is not now often used when referring to administrative decision making, it usefully comprehends concepts relevant to this appeal. (See: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Deane J at 365).

21 Failure of the Tribunal to act "judicially" will necessarily stamp the review procedure as one which did not accord an applicant practical fairness or justice. To act "judicially" and according to law the Tribunal must carry out its decision-making function rationally and reasonably and not arbitrarily. (See: Bond per Deane J at 366-367). That is to say, the Tribunal cannot determine the matter by a "tossing a coin" or by making a &q;
uot;snap decision" or by acting on instinct, a "hunch" or a "gut-feeling".

22 The requirement that the review procedure be carried out according to law, is an irreducible duty arising out of s 75(v) of the Constitution. (See: Abebe v Commonwealth (1999) 197 CLR 510 per Gummow, Hayne JJ at [170]). Failure to observe that requirement will mean that the purported decision of the Tribunal has no "jurisdictional" foundation. (See: Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per Gleeson CJ at [5]-[9]; McHugh, Gummow JJ at [34], [37]; Kirby J at [116], [127]-[128]). The Tribunal only obtains power to make a determination under the Act where the determination is based on findings or inferences of fact that are grounded upon probative material and logical grounds. (See: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [145]; Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 per Gleeson CJ, Gummow, Kirby and Hayne JJ at [34]; Hill v Green (1999) 48 NSWLR 161 per Spigelman CJ at [72]). A determination based on illogical or irrational findings or inferences of fact will be shown to be a decision not supported by reason and to have no better foundation than an arbitrary selection of a result. It is because it is based upon such findings that the determination is an unreasoned decision. Such findings or inferences of fact become part of, and are not distinguishable from, the decision subject to judicial review. (See: S20/2002 per McHugh, Gummow JJ at [54]; Bond per Mason CJ at 338, 359-360). A review culminating in such a decision would be a process lacking practical fairness or justice and would not be a process conducted according to law.

23 The Tribunal is instructed by the Act to determine whether a protection visa is to be granted to an applicant or refused. In effect the outcome of that adjudication depends upon whether the Tribunal is satisfied that the applicant is a refugee within the meaning of that term as used in the Convention. (See: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh, Gummow JJ at 275-276). The requirement that the Tribunal be so satisfied is a "jurisdictional fact" and not a state of mind formed at the Tribunal’s discretion. The satisfaction, or lack thereof, must be determined reasonably, that is, properly, according to the principles set out above. (See: Eshetu per Gummow J at [134]-[146]).

24 The importance of the Tribunal’s function and acknowledgement of the foregoing principles is recognised by s 430 of the Act which requires the Tribunal to explain its decision by providing a written statement that sets out the findings made by the Tribunal on material questions of fact, the evidence or material relied upon for those findings, and the reasons of the Tribunal. (c.f. W157/00A v Minister for Immigration and Multicultural Affairs (2001) 190 ALR 55 at [47]-[52]).

25 In the instant matter it was not in issue that if events had occurred as claimed by the appellant, the appellant had a well-founded fear of persecution.

26 The Tribunal determined the matter adversely to the appellant by disregarding the documents it had been directed to consider by the order made by consent in this Court, stating that the documents "do not overcome the problems I have with the applicant’s evidence".

27 Such a circumstance may arise where an applicant’s claims have been discredited by comprehensive findings of dishonesty or untruthfulness. Necessarily, such findings are likely to negate allegedly corroborative material. (See: S20/2002 per McHugh, Gummow JJ at [49]). Obviously to come within that exception there will need to be cogent material to support a conclusion that the appellant has lied. Alternatively, if the purportedly corroborative material itself is found, on probative grounds, to be worthless it will be excluded from consideration by the Tribunal in assessing the credibility of an applicant’s claims. However, it will not be open to the Tribunal to state that it is unnecessary for it to consider material corroborative of an applicant’s claims merely because it considers it unlikely that the events described by an applicant occurred. In such a circumstance the Tribunal would be bound to have regard to the corroborative material before attempting to reach a conclusion on the applicant’s credibility. Failure to do so would provide a determination not carried out according to law and the decision would be affected by jurisdictional error. (See: Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow, Hayne JJ at [82]-[85]).

28 This appeal did not involve a case in which the credibility of the appellant had been destroyed by stark findings of untruthfulness. The Tribunal accepted that in her youth the appellant had distributed "MKO" newsletters at university and that her brother had engaged in similar activities and had been killed in unexplained circumstances. The Tribunal accepted that the appellant believed that the security forces had been responsible for the death of her brother.

29 The Tribunal said it did not accept that the appellant, a nurse, had assisted an injured "MKO" supporter to escape from the hospital at which she was employed after Iranian security forces had brought that person to the hospital for treatment for his injuries. The principal reason given by the Tribunal for not accepting the appellant’s claims was the failure of the appellant to assert those claims at the "entry" interview on 11 October 2000. The same reason grounded the first decision of the Tribunal where the documents corroborating the appellant’s account had remained untranslated.

30 In regard to the Tribunal’s conclusion that the appellant’s claims could be discarded because they had not been raised at the first opportunity, that approach, as the Tribunal was aware, was not to be taken lightly. In this realm there may be many reasons, apparent or latent, that may explain such a circumstance. As authorities and texts in this area of law have made clear, a Tribunal must exercise considerable care before following that course and, obviously, must consider any material that supports the appellant’s case before determining that the failure to raise claims of a fear of persecution at the first opportunity led to a conclusion that the subsequent claims were invented. (See: Kopalapillai v Minister for Immigration & Multicultural Affairs (1998) 86 FCR 547 at 558).

31 Not the least of the matters to be considered in respect of a person in the position of the appellant would be the possible impact of shock, humiliation and uncertainty that may follow being subjected to arbitrary authority and summary detention. Furthermore, in the case of the appellant there was the additional circumstance that she was severely ill when she was taken to the detention centre. According to the material before the Court the appellant had been on an intravenous drip and had been vomiting regularly throughout a period of eight or nine days immediately before the "entry" interview, notwithstanding that on the day of interview she may have displayed signs of improvement.

32 It was, of course, a matter for the Tribunal to decide if the failure of the appellant to state at the "entry" interview that she feared persecution if returned to Iran, undermined the credibility of such a claim made subsequently. However, in the absence of material which impeached the appellant’s claims directly, the Tribunal could not make that determination without duly considering the weight to be given to material which tended to confirm the truth of her claims. In other words, if there was some material capable of supporting the claims and an absence of cogent material showing the appellant to have been untruthful in respect of those claims, it may be unsafe to regard the failure of the appellant to disclose the claims at the "entry" interview as sufficient to establish that the claims were invented and it would follow that material corroborating the claims would have to be considered.

33 In the reasons of the Tribunal a second ground relied upon by the Tribunal for its conclusion that the appellant’s claim that she had assisted a person to escape from the custody of the Iranian security forces should not be accepted, was the view of the Tribunal that some aspects of the account given by the appellant in the hearing conducted by the Tribunal were "implausible". The aspects identified by the Tribunal did not involve circumstances that were inherently impossible, or beyond belief according to human experience, and instead the matters set out by the Tribunal reflected the Tribunal’s view of the likelihood of the occurrence of the claimed events and not proved facts which showed the appellant’s account to be false.

34 First, the Tribunal stated that it was unlikely that the appellant could have assisted the "prisoner" to escape because it was implausible that the hospital would allow a nurse to be alone with a person it regarded as "dangerous". That statement by the Tribunal did not reflect the appellant’s account. The description of the patient as "dangerous" was introduced by the Tribunal. It was not the appellant’s statement that the hospital so regarded the patient. Speculation by the Tribunal in that regard did not permit the Tribunal to describe the appellant’s account as implausible. It may be noted that the reasons of the Tribunal accepted the evidence of another Iranian nurse, whose status as a refugee had been accepted in Australia, to the effect that from time to time doctors and nurses in Iran had the opportunity to assist "MKO" prisoners to escape from hospitals to which they were brought by security forces for treatment, and she and others had so acted.

35 Next, the Tribunal said that the appellant had given "internally inconsistent evidence" about the finishing time of her hospital shift, by stating first, that it was 8 pm and then stating later in the hearing that she had told the "prisoner" to escape at 7 pm, the time of shift "changeover". No doubt there would be an overlapping period in which outgoing nursing staff instructed incoming staff on the treatment administered to patients in the course of the preceding shift and although the Tribunal may not have found the statement by the appellant to be convincing, namely, that she had 8.00 pm in mind as the time of completion of the shift being the time she got home, the point of inconsistency raised by the Tribunal would not appear to have been of great moment.

36 Then the Tribunal stated that having regard to the short time available it was implausible that when the appellant returned to the hospital after making a telephone call to the guard to distract him from his duties, a colleague of the appellant at the hospital would have been able to inform the appellant that a patient under guard had escaped, had been shot by security forces in the hospital environs and had been taken to the emergency ward. The Tribunal may not have found this account to be persuasive but obviously it was not implausible that a hospital officer on the scene could have had knowledge of the events that had occurred. The appellant’s account was that the public telephone at which she made the call was some seven to ten minutes away from the hospital, that she spent several minutes near the telephone before returning to the hospital and that it was several minutes after she heard shots that she arrived at the hospital.

37 The Tribunal’s next example of implausibility was said to be the appellant’s claim that the Iranian authorities went to the appellant’s home after, and not before, she left Iran. The Tribunal’s statement incorrectly recited the appellant’s claim in that regard. The appellant told the Tribunal that when she got to Indonesia after fleeing Iran she had heard from a friend that authorities had gone to her home and her husband had been arrested. After the incident at the hospital the appellant had not returned to her home. She had contacted her husband by telephone and they decided that she and their daughters must leave Iran forthwith. She stated that with her daughters she took a flight to Tehran and left Iran within five days. When the Tribunal put to the appellant that it would have taken the authorities less than five days to connect the appellant with the hospital incident, and, therefore, to attend her home and arrest her husband, the appellant reminded the Tribunal that she had not said that the authorities had come to her home and arrested her husband after five days had passed. Again no conclusion of implausibility was available.

38 The Tribunal then noted that it was implausible that in the "entry" interview the appellant would have provided a telephone number for her husband if she believed "he had been arrested". The number referred to was the telephone number for the home in which she and her husband lived. It was provided by the appellant at the commencement of the "entry" interview and again later in the interview when the question was raised as to where her husband may be contacted. It is difficult to see how the provision of that telephone number could be said to be inconsistent with a disclosure made by the appellant subsequent to that interview that the appellant had received information whilst in Indonesia that her husband had been arrested some time earlier.

39 The Tribunal acknowledged that each of the foregoing "problems" in the appellant’s evidence might not have been particularly significant but stated that when considered together, in conjunction with the failure of the appellant to disclose her fear of persecution at the "entry" interview, it led to the conclusion that her claim of such a fear should be taken to be not credible. It may be thought that a point of little significance does not become significant when considered with other matters of minor weight. Indeed the acknowledgement of the Tribunal suggests that it did not use the word implausible to describe a circumstance that was inherently unlikely or beyond belief but to denote something not shown to have been likely or probable and to indicate that the Tribunal doubted that certain events had occurred as claimed by the appellant. As discussed earlier, in such a state of non-persuasion the Tribunal remained bound to consider the corroborative material provided by the documents, before it could determine whether it was possible that those events had occurred as claimed.

40 A noted above matters the Tribunal described as implausible were not claims disproved by proved facts nor events so contradicted by commonsense as to be able to be dismissed as possible occurrences. The Tribunal engaged in speculation as to what it thought would have been a more likely course of events but it had no basis on which it could say that the events described by the appellant, and corroborated in the documents, could not have occurred. The Tribunal may not have been persuaded that the events had occurred but the Tribunal had no material on which it could convert such a doubt into a positive finding that the events had not taken place.

41 We return now to the manner in which the reasons of the Tribunal dealt with the foregoing documents.

42 At the outset it may be noted that it does not appear that any of the speculation recited by the Tribunal in its reasons in respect of the possible lack of authenticity in the documents was put to the appellant for comment, and nor was the appellant given the opportunity to address such concerns by presenting material confirming the provenance of documents. (See: WACO v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 171 at [54]-[56]; Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370, 382, 383, 388; WAEJ v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 188 at [52]-[55]; WAJR v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 106 at [51] – [56]).

43 In relation to the letter purportedly received from the sister, several observations can be made. The Tribunal speculated that it would have been a "straightforward" matter for the appellant to have written the letter herself, or for the appellant to have asked her sister to write it. Given that the appellant could write in Persian script it was, of course, possible for the appellant to write the letter. Similarly, as a matter of bare logic it was equally possible that it could have been written by the sister at the direction of the appellant. But the two possibilities would be based on factual assumptions that could not be reconciled. The former is based on the assumption that the writing is that of the appellant, the latter on the assumption that the writing is that of the sister. The Tribunal said nothing to indicate which, if either, assumption it preferred or why, or why either of those possibilities was to be selected ahead of other possibilities.

44 No objective basis was identified for suggesting that the appellant wrote the letter or directed her sister to do so. Such grounds might be provided by surrounding circumstances (opportunity, timing or the like) identified and explained by the Tribunal; or from some form of admission made by the appellant if the possibility that she wrote it, or that her sister wrote it at her direction, had been put to her; or from examination of the letter (it may be apparent, for example, that the writing in the letter, purportedly from the sister, is the same as or sufficiently similar to the writing of the appellant to raise a real doubt about whether the sister wrote the letter). The Tribunal, however, did not engage in such analysis of the material. There was no finding of fact made by the Tribunal that could ground a conclusion that the appellant wrote, or had arranged for the letter to be written. (See: WAGU v Minister For Immigration And Multicultural And Indigenous Affairs [2003] FCA 912 at [37]).

45 The Tribunal did not acknowledge or deal with the other obvious possibility, namely that the letter was written by the sister, was written without direction by the appellant, and recounted facts and events known to the sister which occurred after the events recounted by the appellant. It seems fairly clear that the Tribunal approached the letter on the basis that, presumptively, it should be viewed as not assisting the appellant if doubt about its provenance could be speculated upon.

46 Similar observations can be made about the notice of dismissal purportedly from the former employer. Obviously it was possible that the document could have been manufactured by someone who had access either to a blank hospital letterhead or by someone who had another letter containing the letterhead. But, merely raising those possibilities did not permit the Tribunal to move to conclude that such a circumstance had occurred without identifying some material pointing to that conclusion.

47 The Tribunal appeared to regard the authenticity of the notice from the former employer as impeached by, in its view, an inconsistency in the appellant’s account as to how the notice came into the possession of her sister. One account was given at the hearing (the notice was on the hospital notice board and her sister had gone to the hospital office to obtain the notice) and the other was provided in submissions by the appellant’s adviser after hearing (it was taken from the hospital notice board). If allowance was made for the possibility that the adviser did not precisely understand what he had been told by the appellant, the inconsistency (if it be one) is of little moment. Significantly, there is nothing in the Tribunal’s reasons to suggest that it put this apparent inconsistency to the appellant for her to respond to and explain. They are accounts (even if inconsistent) being relayed by a person who was not involved in obtaining the document (on the appellant’s account) and any inconsistency is just as much explicable (if not more so) by faulty recollection or confusion as it is by the document being the product of fraudulent collusion between the appellant and the sister (or someone else) or simply the fraudulent conduct of the appellant.

48 Again the Tribunal does not entertain and deal with the possibility that the notice was genuine and had been written by the appellant’s former employer and was an important piece of objective evidence corroborative of a central feature of the appellant’s claims.

49 Accordingly, the material set out in the documents had to be taken into account by the Tribunal in determining whether there was a chance that the appellant may suffer persecution in future if returned to Iran. As stated by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576:

‘It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.’

50 The foregoing passage was elaborated by Gleeson CJ, McHugh J in Abebe at [83], where their Honours said that the fact that an applicant:

‘Might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that the claim for refugee status must fail. As Guo [at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal "must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution. [Guo at 576].’

51 As Brooke LJ, with whom Robert Walker LJ concurred, said in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469-470:

‘For the reasons much more fully explained in the Australian cases, when considering whether there is a [real risk] of persecution for a convention reason if an asylum seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur.’

52 The reasons provided by the Tribunal in relation to its rejection of the documents revealed that the Tribunal failed to act judicially in respect of that material. The Tribunal appears to have considered that it could disregard documents that it was otherwise bound to consider if it surmised that it was possible that the documents could have been fabricated. That was not a course open to a tribunal acting judicially. There was no material before the Tribunal that permitted it to so dispose of the documents, and, thus, of the tendency of the documents to corroborate the appellant’s account.

53 It is a denial of a fair process to purport to dismiss documents from consideration where the material therein supports an applicant’s case in substantive respects and no ground for such a course is provided by the documents on their face or by other facts.

54 It follows that the Tribunal did not accord to the appellant practical fairness and justice in the Tribunal’s conduct of the review. Accordingly, the decision of the Tribunal involved jurisdictional error and was not a decision authorised by the Act. (See: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 per Gummow, Callinan JJ at [24], [32]). The appeal must be allowed and the application for relief by issue of prerogative or constitutional writs must be granted.


I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee and Moore.



Associate:

Dated: 26 March 2004


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W5 OF 2003


ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA


BETWEEN: WAIJ
APPELLANT
AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
RESPONDENT


JUDGES: LEE, MOORE and RD NICHOLSON JJ
DATE: 29 MARCH 2004
PLACE: PERTH


REASONS FOR JUDGMENT

RD NICHOLSON J:

55 The critical issue raised by this appeal is whether in the particular circumstances a finding of credibility made by the Refugee Review Tribunal (‘the Tribunal’) precludes a conclusion that the Tribunal fell into jurisdictional error. The credibility finding was to the effect that certain letters, said to be corroborative of the appellant’s claims, themselves would have no weight placed on them.

56 This appeal is brought on three grounds all directed to the alleged failure of the Tribunal to meaningfully consider the letters in the context of the whole of the evidence. The first ground is that the Tribunal failed to take in to account relevant material and so made a jurisdictional error which was reviewable. The second was that the Tribunal denied the appellant natural justice by not taking into account the relevant material and evidence and so made a jurisdictional error. The third was that the Tribunal ‘failed to deal with a very important aspect of the appellant’s claims and so made a jurisdictional error.’

57 It is not necessary for me to extensively recite the relevant facts as I am content to rely on the statement in that regards in the reasons of Lee and Moore JJ. The following, however, are centrally relevant facts.

58 On 2 April 2002 orders were made by consent setting aside the first Tribunal decision and remitting the matters to the Tribunal differently constituted for reconsideration. In the orders it was stated that the Tribunal give due consideration to the two letters received by the Tribunal with [appellant’s] submissions dated 14 May 2001. That was a reference to a letter from the appellant’s sister and a fax from her purporting to contain the notice of dismissal issued by the appellant’s former employer in Iran. The content of these and the reasoning of the Tribunal and the Federal Magistrate in relation to them are fully set out in the reasons of their Honours.

59 In the submissions on the hearing of this appeal counsel for the appellant contended that the Tribunal had failed to make any finding concerning the letters and thus failed to accord with the order made on 2 April 2002. It was submitted that the Tribunal did not attempt to ‘grapple with these letters in any meaningful way.’ He submitted that this occurred in circumstances where there was nothing in the letters directly inconsistent with, for example, reliable country information. In such circumstances it was said that where the letters are apparently corroborative of the claim it is impermissible for the Tribunal to put them aside on the basis of speculation. Also it was asserted that it was not permissible for the Tribunal to put the evidence aside without making any finding about it at all.

60 When the Tribunal considered the letters it concluded that, for reasons it set out and relating to their apparent origin, the letters did not overcome the problems the Tribunal had with the appellant’s evidence. In my view, considering that statement in its context, that was a finding of fact that the letters lacked credibility. This is not a case where the Tribunal failed to make a finding concerning the letters. While the Tribunal did not reject the letters, it made an adverse credibility finding concerning them when it decided not to place any weight on them as proof of the appellant’s claims. The focus of the contentions for the appellant is that in reaching that finding the Tribunal failed to take into account the detail of the letters in the context of all the evidence. The nub of the appeal therefore sits at the cusp of the law relating to a failure to take into account a relevant consideration and the law relating to the right of an administrative decision-maker to make findings of credibility.

61 It is beyond contention that an administrative tribunal will fall into error of law and commit jurisdictional error if it ignores relevant material: Craig v South Australia (1995) 184 CLR 163 at 179. Here it cannot be said that the Tribunal ignored the relevant material constituted by the letters in the sense that it did not advert to them. It did advert to them and, additionally, made the adverse credibility findings concerning them.

62 The focus of the appeal is that the Tribunal, by failing to make any findings of fact concerning the content of the letters, ignored the salient corroborative features of the material. Does that come within the recognition of the law as within the concept of ignoring relevant material? In Re Minister for Immigration & Multicultural Affairs; Ex parte Yusuf (2001) 206 CLR 323 at 351 at [82], McHugh, Gummow and Hayne JJ said ‘what is important...is that ... ignoring relevant material...in a way that affects the exercise of power is to make an error of law.’ This may suggest that the ignoring of the content of the letters as exemplified by the absence of any finding of fact in relation to the content of the letters, being a matter which arguably affected the exercise of power, could be an error of law. This proposition was accepted on behalf of the respondent only to the extent that if the Tribunal had made a wrong legal construction of the document, there would have been an error of law. However, it was said that here the Tribunal did not purport to say that the evidence did not have any corroborative effect; rather it did not give the letters weight in assessing the appellant’s credibility.

63 The appellant seeks support in Dranichnikov v Minister for Immigration & Multicultural Affairs (2003) 197 ALR 389. There it was held there was a failure to exercise jurisdiction because the tribunal did not consider the claim which the applicant was making, namely that he was a member of a particular social group of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals. Gummow and Callinan JJ at [28] said that had that question been addressed, it would in all likelihood have permitted only of an affirmative answer. That was in circumstances where the Tribunal accepted the credibility of the applicant.

64 Here, once the credibility finding is recognised and the entitlement to it is not challenged on a ground of no evidence, the only way in which it can be said the Tribunal failed to take the letters into account is to go behind the credibility finding and to examine what reasoning processes may have been available to the Tribunal if other evidence had been considered. It is not contended for the appellant that there was no evidence to support the Tribunal’s adverse credibility finding. Rather it is contended the finding should not have been made if the content of the letters had been ‘properly’ considered in the context of all the evidence. The grounds therefore invite this Court to (impermissibly) examine the reasoning processes of the Tribunal in arriving at a credibility finding not challenged as unsupportable.

65 Reference to the reasons for judgement of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40-42 provides some assistance in considering the scope of the ground of failing to take into account a relevant consideration. At 40 Mason J said the ‘limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind.’ He continued by stating that ‘in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to matters which are required to be taken into account in exercising the statutory power.’ Nevertheless he accepted that ‘in some circumstances a court may set aside an administrative decision which has failed to give adequate weight to a relevant factor of great importance, or has given excessive weight to a relevant factor of no great importance’ on the ground of unreasonableness. He also stated that an appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice. On this appeal there is no ground of unreasonableness.

66 These passages suggest to me that where a Tribunal has arrived at a view of the weight of the evidence, it has not failed to address that evidence and a court will be very slow to review it under the rubric of a failure to consider as this may constitute an impermissible intrusion into the area of reweighing the evidence. To regard the ground as permitting the Court to go behind the Tribunal’s conclusion as to weight, would be to adopt a course not open to the Court in the present circumstances where no unreasonableness is at issue. The fact that the Tribunal reached a view on weight distinguishes these circumstances from those in Dranichnikov where there was a failure to address the issue raised at all.

67 It may of course be accepted that there are dangers in according to an administrative decision-maker the power to make unreviewable findings of credibility. Some of these dangers have been helpfully explored by G Coffey, ‘The Credibility of Credibility Evidence at the Refugee Review Tribunal’ (2003) 15(3) International Journal of Refugee Law 377. As Gleeson CJ said in Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, at [4] ‘decisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive.’ The legal controls in that situation exist in the ground of unreasonableness and the no evidence rule. As has been said, no reliance is placed on either of those grounds here. This is not a case where there was nothing upon which the Tribunal could reach its finding of lack of credibility in the letters: the Tribunal recited the matters upon which it relied in that respect and none of them have the hallmarks of being arbitrary.

68 It must be accepted that it could be unsatisfactory for a Tribunal’s finding of lack of credibility (‘implausibility’) to mask anything more than the predilections of a Tribunal member. The protection against that is the presence of the no evidence rule. Short of that, I do not consider that the law as presently enunciated permits jurisdictional error to be found by going behind the credibility finding to conclude that the Tribunal could have reasoned in other ways. That is not to say that the present reach of the law in that respect is entirely satisfactory or could not benefit from reform, given in particular the voluminous findings of implausibility faced by appellate courts from decisions of the Tribunal. Whether a change in the law in that respect is desirable is not for this Court to consider.

69 It was precisely because of the finding of lack of credibility in the letters that the Tribunal was not required to proceed to deal with the potentially corroborative aspects of the claims made in the letters: cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at 70, at [49] per McHugh J. Furthermore, the Tribunal’s approach to the letters does not necessarily mean that the issue in relation to them was considered in isolation from the other evidence before it: cf S20/2002 at 63, at [14] per Gleeson CJ.

70 The natural justice ground relies upon the same circumstances as the previous ground. As was said in Yusuf at 179, at [82], ‘the circumstances of a particular case may permit more than one characterisation of the error identified...’. It therefore falls to be resolved in the same manner as the previous ground. That is, it cannot be said that the appellant was denied natural justice by not taking into account the relevant material and evidence only because the credibility finding to which it was entitled made further consideration of such evidence otiose.

71 As to the further natural justice contention dealt with in the post-hearing submissions, namely that the Tribunal had not put to the appellant the bases on which it ‘rejected’ the credibility of the letters, I agree with the submissions for the respondent that this contention is not one within the terms of the only ground of appeal relating to natural justice as formulated. Importantly in any event, the appellant’s then migration agent had the opportunity and did make submissions concerning the genuineness of the letters in pre-hearing submissions on just the point dealt with by the Tribunal. The present case is therefore distinguishable from the circumstances in both WACO v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 171 and WAGU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 912 where a tribunal failed to give the applicant for a protection visa an opportunity to be heard on the issue.

72 For these reasons I consider the appeal should be dismissed.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson.





Associate:

Dated: 29 March 2004





Counsel for the Applicant: M D Howard (pro bono publico)



Counsel for the Respondent: M T Ritter



Solicitor for the Respondent: Australian Government Solicitor



Date of Hearing: 14 August 2003



Date of Written Submissions: 5 September, 14 November 2003



Date of Judgment: 29 March 2004
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