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MIGRATION - judicial review - protection visa - Refugee Review Tribunal - well-founded fear of persecution - whether "real chance" of persecution - approach to decision-making by Tribunal - implausibility of claims - non-acceptance of claims - finding claims fabricated - whether implausibility equated to finding of improbability - whether findings excluded any real doubt of occurrence of claimed events of persecution - whether Tribunal failed to undertake "real chance" analysis - relevance of findings of consistency in claims - relevance of absence of adverse findings based upon demeanour - Tribunal reasons to be read as a whole - findings excluded doubt - no error on part of Tribunal - appeal allowed - decision of primary judge setting aside Tribunal decision set aside

Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12

Minister for Immigration & Multicultural Affairs v W64/01A [2003] FCAFC 12 (19 February 2003)
Last Updated: 24 February 2003


FEDERAL COURT OF AUSTRALIA


Minister for Immigration & Multicultural Affairs v W64/01A
[2003] FCAFC 12


MIGRATION - judicial review - protection visa - Refugee Review Tribunal - well-founded fear of persecution - whether "real chance" of persecution - approach to decision-making by Tribunal - implausibility of claims - non-acceptance of claims - finding claims fabricated - whether implausibility equated to finding of improbability - whether findings excluded any real doubt of occurrence of claimed events of persecution - whether Tribunal failed to undertake "real chance" analysis - relevance of findings of consistency in claims - relevance of absence of adverse findings based upon demeanour - Tribunal reasons to be read as a whole - findings excluded doubt - no error on part of Tribunal - appeal allowed - decision of primary judge setting aside Tribunal decision set aside

Migration Act 1958 (Cth) s 476

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

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

Abebe v Commonwealth of Australia (1999) 197 CLR 510 cited

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 cited

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 cited

Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited

V872 v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 268 cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 cited

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 cited

Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 cited

Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 192 ALR 256 cited

Attorney-General (NSW) v Quin (1990) 170 CLR 1 cited

WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 cited

Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212 cited

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v W64/01A

W259 OF 2002

FRENCH, CARR AND FINKELSTEIN JJ

19 FEBRUARY 2003

PERTH

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W259 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT


AND:
W64/01A

RESPONDENT


JUDGES:
FRENCH, CARR AND FINKELSTEIN JJ


DATE OF ORDER:
19 FEBRUARY 2003


WHERE MADE:
PERTH




THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The orders made by the learned primary judge on 8 August 2002 are set aside and in lieu thereof the following orders made:

(1) The application is dismissed.

(2) The applicant is to pay the respondent's costs of the application.

3. The respondent to pay the appellant's costs of the appeal.

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
W259 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

APPELLANT


AND:
W64/01A

RESPONDENT




JUDGES:
FRENCH, CARR AND FINKELSTEIN JJ


DATE:
19 FEBRUARY 2003


PLACE:
PERTH





REASONS FOR JUDGMENT
French J:

Introduction

1 On 1 November 2000 an Iranian family comprising two adults and two children arrived in Australia by boat without lawful authority. At the time of their arrival the two children, a son and a daughter, were aged 15 and 17 years respectively. On 11 November, the husband, who is the respondent in the present appeal, made an application for a protection visa. His wife and their two children were included in the application on the basis that they did not have their own claims to be refugees.

2 The respondent's application for a protection visa was rejected by a delegate of the Minister for Immigration and Multicultural Affairs on 30 November 2000 and the respondent was notified on 1 December 2000. On 8 December 2000, an application for review of the delegate's decision was lodged with the Refugee Review Tribunal ("the Tribunal") on behalf of the respondent and his family members. On 26 February 2001, the Tribunal affirmed the delegate's decision.

3 An application for review of the Tribunal's decision was filed in this Court in the name of the respondent on 3 March 2001. The application was made pursuant to s 476 of the Migration Act 1958 (Cth) as it then stood. It was made prior to the extensive amendments to the judicial review provisions of the Migration Act introduced by the Migration Legislation (Judicial Review) Amendment Act 2001 (Cth), which came into effect on 2 October 2001. When the application for review was filed the respondent was not represented. Subsequently a firm of solicitors agreed to represent him and a minute of a substituted application was filed on 28 August 2001.

4 The application came on for hearing before the learned primary judge and the hearing proceeded over two days on 24 September 2001 and 27 February 2002. On 8 August 2002, his Honour made orders in the following terms:

"1. The decision of the Refugee Review Tribunal made 26 February 2001 be set aside and the matter remitted to the Tribunal for redetermination.
2. The respondent pay the applicant's costs."

5 On 29 August 2002, the Minister filed a notice of appeal against the decision.

The Factual Background

6 Carr J has set out in his reasons for judgment the claims before the Tribunal and its findings together with relevant extracts from the reasons of the learned trial judge. It is sufficient for my purposes to refer, in summary form, to significant features of the factual background and the Tribunal's findings.

7 In support of his application for a protection visa the respondent made the following claims:

1. Before leaving Iran he was a businessman involved in the textile industry who operated his own shop with two sales people and an accountant. One of his sales staff was a law student.

2. The law student had been involved in anti-government demonstrations in 1999 and, unbeknown to the respondent, kept pamphlets hidden at the shop. He was monitored by the Intelligence Service. On 19 February 2000, the Intelligence Service raided the shop. The law student escaped through the backdoor but the other sales person was detained and interrogated for a week. The respondent was away in another town at the time.

3. The respondent returned a week later unaware of precisely what had happened but was informed by his wife that neighbouring shopkeepers had been asking about his whereabouts. He met the law student's father and was told what had happened.

4. The respondent was subsequently told by friends that it was rumoured that he was financially supporting students involved in the 1999 protest. There were people at the shop who were watching the movements of people in the area. The respondent contacted his lawyer and saw him that night. He was told not to worry and that his lawyer would find out what was going on.

5. The respondent was informed by his lawyer that the law student was wanted and that the lawyer could not do much to assist him. The respondent decided to "disappear" until the danger lessened. He went to another town and stayed with friends and relatives.

6. While the respondent was away the Intelligence Service came to his home on more than one occasion and searched it. They threatened his family. In June 2000, his wife was taken from her hairdressing business and questioned about his whereabouts. The Intelligence Service took control of the respondent's shop and men were stationed there. They confiscated goods and money. The respondent was sent a summons, through his wife, to attend upon the Intelligence Service. His wife's hairdressing shop was sealed up on 15 July 2000.

7. The respondent decided he had to leave Iran with his family because they were in danger. He found, through a friend, that he was on a black list at the Passport Office. His friend took his passport to the Office to check it and when his name came up on the computer his passport was confiscated.

8. The respondent made arrangements to leave Iran unofficially with the assistance of people smugglers. He paid $US7,000 per family member to be taken via Pakistan to Indonesia and then Australia.

9. The respondent asserted that if he were returned to Iran he would face imprisonment on the basis that he was believed to be involved with the law student who had used his shop to store anti-regime pamphlets.

8 The respondent expanded upon these points in an interview with the delegate on 17 November 2000, in his submissions to the Tribunal and at an oral hearing before the Tribunal. He submitted to the Tribunal, through his migration agent, under cover of a letter dated 5 February 2001, a letter from his lawyer in Tehran, a translation of which read as follows:

"The undersigned - Mr [name provided]'s private lawyer - he is merchant in `Berlein' alley - with relation the problem that was related to Iranian intelligent Service "ETTEIAT" and had been happened on 23,2,000 for him, I refused to attorney for him."
This was signed by a person above the designation "Private lawyer grade one" and an agency number followed by an address and telephone number. In a submission accompanying the letter of 5 February 2001, the respondent's representatives stated that he wanted to make it clear that his law student employee had been a member of the Mujahideen-e-Khalq and that when the term "pamphlet" was used in Iran it automatically indicated Mujahideen pamphlets.

The Tribunal's Findings

9 The essential elements of the Tribunal's findings, in the sequence in which they appeared in its reasons for decision, were as follows:

1. It was unclear why the authorities would take the view that the applicant had been financing his student employee's activities.

2. Assuming that the authorities did suspect the respondent of financing his student employee's activities and of passing information from abroad, it was not clear why they would not simply have arrested the respondent on his return.

3. Even if the Tribunal were to accept that the authorities missed the respondent after his return there remained the fact that the respondent claimed to have stayed in hiding in Iran for the next five months. During this time he was joined by his family for the Iranian New Year holiday.

4. The evidence of the respondent and his wife was by and large consistent.

5. The evidence of the respondent and his wife was "corroborated to a limited degree" by the letter from the respondent's lawyer.

6. It was "implausible":

(i) that authorities would have suspected the respondent of some connection with the Mujahideen-e-Khalq simply because pamphlets were found in the storeroom of his shop and that his fax machine had been used for overseas contacts. If the respondent's evidence were to be accepted the suspicions of the authorities would have fallen on his law student employee;

(ii) that if authorities had suspected the respondent, after finding pamphlets in the storeroom of his shop, they would not have searched his home immediately or at least placed his home under surveillance so they could arrest him as soon as he returned from the town he had been visiting;

(iii) that if the authorities were searching for the respondent as he asserted they would not have located him at some time during the five months that followed while he remained in Iran, for example by following his wife and children to the town where they met him for the Iranian New Year;

7. The Tribunal did not accept:

(i) the evidence of the respondent and his wife with regard to their reasons for leaving Iran when they did;

(ii) that the respondent had a student employee who was an active member of the Mujahideen-e-Khalq or that pamphlets of that organisation were found in the store room of his shop;

(iii) that the authorities were searching for the respondent as a result of the discovery of those pamphlets and as a result of his employee having used the shop and fax machine and the telephone at the shop for political activities;

(iv) that the respondent spent five months between February 2000 and August 2000 in hiding from the authorities, nor that his home was repeatedly searched during that period, his business was confiscated or his wife's hairdressing salon closed on the orders of the Ettelaat;

(v) that the respondent's wife was detained for about a week in June 2000 nor that she was questioned with regard to her husband's whereabouts and told that he was an anti-government agent.

8. The evidence of the respondent and his wife with regard to their reasons for leaving Iran when they did was a fabrication.

The Tribunal progressed from difficulty in accepting the respondent's evidence, to findings of implausibility in respect of key aspects of it, to non-acceptance of those key aspects and thence to a positive finding of fabrication.

10 There followed second order findings that the respondent and his wife did not leave Iran illegally and in particular that the respondent was not on the black list of persons prevented from leaving Iran. Given that they had not left Iran illegally, the Tribunal did not accept that they would face any penalty or punishment for that reason if they were to return to Iran now or in the reasonably foreseeable future.

11 The Tribunal accepted that the respondent's wife had suffered harassment in connection with her business as a hairdresser and that, as claimed, three or four years ago she was given fifty lashes and fined 200,000 tomans as a result of the conduct of one of her employees in leaving the hairdressing salon with part of her hair uncovered and smoking a cigarette during Ramadan.

12 Although the respondent's wife had not advanced her own refugee claims in the original application the Tribunal went on to say that it was unable to be satisfied that she had a well-founded fear of persecution in connection with her work as a hairdresser were she to return to Iran. In any event such fear of persecution as was asserted was not connected by the evidence to any suggestion that "hairdressers" formed a particular social group in Iranian society.

13 The Tribunal did accept that there was a real chance that the Iranian authorities would conclude that the respondent and his wife had applied for asylum in Australia. However, the Tribunal relied upon advice from the Department of Foreign Affairs and Trade that the act of applying for asylum abroad is not of itself an offence in Iran.

The Primary Judge's Reasons

14 The learned primary judge's reasons for determining that the Tribunal's decision should be set aside involved the following steps:

1. The Tribunal found that the respondent's claims were consistent and supported by the account provided by his wife and by a letter provided by his lawyer. It did not purport to find on probative material that the respondent was dishonest or fraudulent.

2. The Tribunal found three elements of the respondent's account to be "implausible". In context this was a finding that the claimed events were unlikely to have occurred.

3. The Tribunal's subsequent non-acceptance of all elements of the respondent's case could only have been based upon its opinion that the occurrence of the three "implausible" events was unlikely.

4. His Honour then considered each of the findings of implausibility. He observed in respect of each of the claims so characterised that it was not impossible or inherently improbable. Moreover the rejection of the respondent's contention that the authorities suspected him of some connection with the Mujahideen-e-Khalq because of the pamphlets in his storeroom did not address the case which he advanced. For his case was that the Intelligence Service suspected that his proximity to a suspected Mujahideen operative and the presence of Mujahideen pamphlets indicated that he had permitted his business premises to be used to support the Mujahideen cause. His Honour concluded:

"In the end, in respect of each event, the Tribunal, by use of the word "implausible", did no more than state a view on the degree of likelihood of the occurrence of that event and, in effect, record that it had not been persuaded by the applicant that the event described had occurred as claimed."

15 His Honour then identified the task that the Act required the Tribunal to carry out thus:

"... to determine the chance of events occurring in future after first attempting to determine what was likely to occur."
In this connection he referred to Minister for Immigration and Ethic Affairs v Guo (1997) 191 CLR 559 at 574-576 and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [83]. He said:

"The decision the Tribunal had to make was whether the applicant had a well-founded fear of persecution and, in making that decision, the Tribunal could not exclude relevant matters from its consideration. In determining whether the applicant's fear, namely that he would suffer persecution in future if returned to Iran, was well-founded, the Tribunal had to put all relevant matters into the balance and ask itself if there was a real risk that such persecution may occur. Notwithstanding that the Tribunal may not have been persuaded that past facts relied upon by the applicant had occurred as claimed by him, any assessment of the degree of risk of persecution facing the applicant in the future, had to take those claimed events into account."

His Honour went on to say that, at their highest, the reasons of the Tribunal recorded that it had not been persuaded by the respondent that each of the claimed events had occurred as stated. They did not set out positive findings based on probative material or logical grounds that the events had not occurred. The Tribunal speculated that the Iranian Intelligence Service would not have acted as claimed and purported to rely upon that speculation to put that part of the respondent's case to one side. The Tribunal was bound to consider the events which the respondent said occurred in assessing whether there was a real chance that future events feared by the respondent might occur. Notwithstanding that the Tribunal was not satisfied affirmatively that the events had occurred, it had to assess whether it was possible that those events involving the respondent and Iran Intelligence had occurred and had done so by reason of political opinion imputed to the respondent.

16 In relation to the letter from the respondent's lawyers, his Honour held that the Tribunal had failed to analyse how that aspect of the respondent's case bore upon the existence of a real, as opposed to fanciful, risk of persecution at the hands of Ettelaat. First, the Tribunal appeared to accept the letter from the lawyer supported the respondent's claim that he was a person of interest to Iranian intelligence, the letter had to be taken into account in assessing whether there was a real risk that persecution might face the respondent if he returned to Iran.

17 His Honour held that the Tribunal's characterisation of the evidence of the respondent and that of his wife as a fabrication was a bare assertion:

"It was relied upon by the Tribunal to relieve itself of the obligation to take account of the possibility of the occurrence of past events in assessing the prospect of the occurrence of future events of persecution."
His Honour said:

"This was not a case where the Tribunal could point to basic inconsistencies in accounts given by the applicant or his wife on previous occasions and nor was there probative material before the Tribunal to show that any part of the applicant's claims was untrue. There was no independent country information inconsistent with the applicant's claims regarding the events he said caused him to flee with his family. By describing the three events as "implausible" and by relying upon that statement to dismiss the applicant's claims in their entirety, the Tribunal misapprehended and incorrectly applied the relevant law.

The Tribunal had made no positive or affirmative findings which discredited the applicant in respect of the claimed events thereby permitting the Tribunal to discount possibilities arising out of the applicant's claims that it otherwise would have been obliged to consider."

On this basis, his Honour held the Tribunal had failed to carry out the review process which it was charged to perform by the Act, that failure being rooted in its misinterpretation of the relevant law in respect of the meaning of "well-founded fear of persecution" or in the misapplication of that law to the facts. This provided a ground for review under s 476(1)(e) of the Act. Further, the Tribunal had failed to take into account a relevant consideration or failed to ask and determine the correct question in purporting to make the decision that it was not satisfied that the respondent had a well-founded fear of persecution. In those circumstances grounds for review also arose under s 476(1)(b) or (c) of the Act. His Honour referred to Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1.

Grounds of Appeal

18 The Minister's notice of appeal raises the following grounds:

"The learned primary judge erred in holding that the Refugee Review Tribunal ("Tribunal") failed to carry out the review process it was required to perform under the Migration Act 1958 ("Act") by reason of:
(i) its misinterpretation of the meaning of "well-founded fear of persecution" thereby providing a ground for review under s 476(1)(e) of the Act; and

(ii) its failure to take into account a relevant consideration, or failure to ask and determine the correct question in purporting to make the decision that it was not satisfied that the Applicant had a well-founded fear of persecution, thereby providing a ground of review under s 476(1)(b) or (c) of the Act.


PARTICULARS

(a) The analysis of the facts made by the primary judge was a criticism of the Tribunal's finding of fact that it (the Tribunal) was not satisfied that the Applicant (Respondent) had a well-founded fear of persecution, of the weight that the Tribunal attributed to the different items of information before it and of the reasoning process adopted by it in reaching its factual conclusions. Those criticisms were not sound and, even if the criticisms were sound, did not establish an error of law. In this regard His Honour:

(i) erred in attributing to the Tribunal the doubts His Honour had about the facts the Tribunal had found and in particular His Honour disagreed with the Tribunal's findings of fact that it was implausible that:

(A) the authorities would have suspected the Applicant had some connection with the Mujahideen-e-Khalq just because pamphlets were found in the store-room of his shop and the fax machine had been used for overseas contacts;

(B) that, if the authorities had suspected the Applicant after finding pamphlets in the store-room of his shop, they would not have searched his home immediately, or at least have placed his home under surveillance so that they could arrest him as soon as he returned from Bandar Anzali;

(C) if they were searching for him as he claims, they would not have located him at some time during the next five months while he remained in Iran, for example, by following his wife and children to Bandar Anzali, where they met him for the Iranian New Year: reasons for judgment at [15].

(ii) erred in holding that the Tribunal failed to determine the chance of what was likely to occur in the future so far as the Applicant's claims were concerned by failing to assess whether it was possible that the events involving the Applicant and Iranian Intelligence had occurred by reason of political opinion imputed to the Applicant when:

(A) the Tribunal did consider whether the past events involving the Applicant had occurred;

(B) the Tribunal concluded that the evidence of the Applicant and his wife was a fabrication and on a fair reading of its decision that the Applicant did not face a real chance of persecution for a Convention reason if he returned to Iran; and

(C) there was nothing in the Tribunal's reasons to indicate that the Tribunal had any real doubts as to its finding that the past events involving the Applicant did not occur and that therefore its conclusion that the evidence of the Applicant and his wife was a fabrication might be wrong."

Statutory Framework - The Criteria for Grant of a Protection Visa

19 The Act authorises the Minister to grant to a non-citizen permission, to be known as a visa, to travel to and enter Australia and/or remain in Australia (s 29). There are prescribed classes of visas (s 31). One of those prescribed classes is the protection visa (s 36).

20 Subsections (1) and (2) of s 36 as it stood when the respondent lodged his application for review in the Refugee Review Tribunal read as follows:

"36(1) There is a class of visas to be known as protection visas.

(2) A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol."

Subsections (3) to (7) inclusive were introduced into s 36 by the Border Protection Legislation Amendment Act 1999 (Cth) (No 160 of 1999). They exclude from the scope of Australia's protection obligations persons who have rights to enter and reside in what may broadly be described as "safe third countries". Their provisions are not relevant for present purposes.

21 The criterion in s 36(2) was amended by two Acts which came into effect on successive days, on 1 and 2 October 2001. The Migration Legislation Amendment Act (No 6) 2001 (No 131 of 2001) repealed the subsection and substituted the following:

"(2) A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:


(i) is mentioned in paragraph (a); and

(ii) holds a protection visa."

The Migration Legislation Amendment (Judicial Review) Act 2001 (No 134 of 2001) made a further amendment inserting the words "the Minister is satisfied" after the word "whom" in the subsection. So subs 36(2) now reads:

"(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa."

The first mentioned amending Act, No 131 of 2001, came into effect on 1 October 2001. The second amending Act, No 134 of 2001, came into effect on 2 October 2001.

22 The application provisions in each of the amending Acts have the effect that the applicable criterion under s 36(2) at the time the learned primary judge made his decision was that set out in s 36(2) as it stood prior to the amendments which came into effect on 1 and 2 October 2001.

23 Schedule 2 of the Regulations set out criteria for the grant of various classes of visa pursuant to reg 2.03. Item 785 of Schedule 2 dealt with temporary protection visas and Item 866 with protection visas. Both included as a criterion that:

"... the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention."
24 Article 33 of the Refugees Convention gives rise to a primary obligation upon States that qualifies as a protection obligation for the purposes of s 36(2). The Contracting States, by that Article, undertake not to expel or return a refugee to the frontiers of territories in which his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group, or political opinion. The obligation otherwise known as the "prohibition against refoulement" has two important elements:

1. It operates in respect of refugees.

2. It prohibits their expulsion or return to the frontiers of territories where their lives or freedoms would be threatened for a Convention reason.

A refugee is defined in Article 1A(2) of the Convention as any person who:

"... owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."

Statutory Framework - The Function of the Tribunal

25 The Tribunal is established by s 457 of the Act. Its functions include the review of decisions refusing the grant of protection visas. In reviewing such decisions the Tribunal may exercise all the powers and discretions conferred by the Act on the person who made the decision (s 415). It may affirm or vary the decision, remit the matter for reconsideration or set the decision aside and substitute a new one (s 415). In carrying out its functions under the Act the Tribunal is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick (s 420). It is not bound by technicalities, legal forms or rules of evidence and must act according to substantial justice and the merits of the case (s 420).

Statutory Framework - Grounds for Review

26 Prior to October 2001, decisions of the Refugee Review Tribunal were classed as "judicially-reviewable decisions" amenable to review by the Federal Court (ss 475, 476 and 486). The available grounds of review, relevant for present purposes, were set out in s 476 thus:

"476(1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
.

.

.

(b) that the person who purported to make the decision did not have jurisdiction to make the decision;

(c) that the decision was not authorised by this Act or the Regulations;

.

.

.

(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision."


The Criteria Applicable to the Tribunal's Decision

27 When the Tribunal made its decision on 26 February 2001 affirming the delegate's refusal to grant protection visas, it was required to apply the criteria under s 36(2) and Item 866. These criteria used different language, the first turning upon the existence of protection obligations owed to an applicant, the second turning upon ministerial satisfaction as to their existence. Since 2 October 2001 and the amendments to s 36(2) which came into effect on that day, ministerial satisfaction as to the existence of protection obligations is the only relevant criterion.

28 The distinction has been drawn, in respect of earlier incarnations of the Migration Act, between the determination of a fact and the decision-maker's satisfaction of that fact. In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 reference was made to changes in statutory criteria governing the grant of entry permits to refugees. When the High Court decided Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, s 6A of the Act provided for a ministerial determination that a person had refugee status. When Wu was decided, the Act had been amended to empower the Minister to determine that a person was a refugee if the Minister was "satisfied" that the person was a refugee. In the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Wu, their Honours said of the "satisfaction" requirement:

"... it is inappropriate to describe a decision refusing refugee status as a decision not to determine that the person is a refugee. Rather, it is a decision that the Minister is not satisfied that the person has a genuine fear founded upon a real risk of persecution." (at 274-275)
29 More recently in V872/00A v Minister for Immigration and Multicultural Affairs (2002) 190 ALR 268, Hill J commented upon the amended form of s 36(2) which came into force on 2 October 2001. His Honour said:

".... the issue before the tribunal is not whether the applicant is a person to whom Australia has protection obligations. Rather the issue is whether on the material before it the tribunal is satisfied that Australia has, towards the applicant, protection obligations. The existence of that element of satisfaction provides a degree of flexibility in the decision-making process." (p 270)

30 In this case the Tribunal referred to the criteria as those "set out in section 36 of the Act and Parts 785 and 866 of Schedule 2 to the Migration Regulations". It relied on s 36(2) and made no other reference to the criteria in the Regulations. The learned primary judge also said that "[t]he only prescribed criterion relevant to this proceeding is that set out in s 36(2) of the Act". No point was taken on the appeal about the difference in the language of the two criteria of whether there was invalidating inconsistency between the Regulations and the Act in respect of the criteria to be applied. It is appropriate to proceed, as the parties did, upon the basis of the criterion set out in s 36(2). It tends, if anything, to favour applicants for a protection visa by requiring a finding on the part of the delegate or Tribunal rather than a state of satisfaction, although a state of satisfaction informed by error of law was nevertheless reviewable under the Act as it stood prior to October 2001 - Wu at 275; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 653-7 (Gummow J) and authorities there cited.

The Decision-making Method Required of the Tribunal

31 The methods of curial and administrative decision-making were contrasted by the joint judgment in Wu at 282:

"Administrative decision-making is of a different nature. A whole range of possible approaches to decision-making in the particular circumstances of the case may be correct in the sense that their adoption by a delegate would not be an error of law."


The nature of such decision-making in relation to asylum seekers was further considered by Full Courts of this Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 at 588; Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 419-420 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 231-233 (Sackville J, North J concurring). Some of the discussion in Rajalingam referred to the criterion of ministerial "satisfaction" that the applicant is one to whom Australia has protection obligations. That criterion is not in issue here for reasons outlined above, but the general distinction between curial and administrative decision-making in the context of review by the Refugee Review Tribunal is still apposite.

32 There is no useful all-embracing description of the steps involved in Tribunal decision-making for the very reason that a range of approaches is open. The attempt to develop a judge-made global standard requiring that the Tribunal give "proper genuine and realistic consideration" to the application before it was rejected in Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 192 ALR 256. Formulae of that kind would open the door to merits review under the guise of judicial review. As Sackville J observed in Rajalingam at 233:

"Just as administrative decision-making is different from civil litigation, so the role of a court reviewing an administrative decision is different from its role in civil litigation in which it assesses evidence and makes findings of fact."
33

His Honour referred to the well known passage from the judgment of Brennan J in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36 that the merits of administrative action, to the extent they can be distinguished from legality, are for the repositories of the relevant power alone, subject to political control. That having been said, the content of a statutory power will define issues that have to be considered by a decision-maker in the exercise of that power and the nature of the issues will define the logical framework within which the power must be exercised. These functional consequences attend the definition of "refugee" in the Refugees Convention.

34 The characterisation of a person as a refugee is a necessary element of any finding that Australia has protection obligations to that person. Such characterisation requires, in accordance with Art 1A(2) of the Refugees Convention, a finding of "a well-founded fear of being persecuted ..." for one of the reasons there set out. This requires a finding that the applicant has a genuine fear and that the fear is well-founded. In Chan v Minister for Immigration and Ethnic Affairs, it was held that a fear of persecution is "well-founded" if there is a real chance that the refugee will be persecuted if returned to his or her country of nationality - at 339 (Mason CJ), 398 (Dawson J), 407 (Toohey J) and 429 (McHugh J).

35 Gaudron J was reluctant to expand upon the language of Art 1A and observed of the decision-maker's function in such cases:

"The humanitarian purpose of the Convention, the fact that questions of refugee status will usually fall for executive or administrative decision and in circumstances which will often not permit of the precise ascertainment of the facts as they exist in the country of nationality, serve, I think, to curb enthusiasm for judicial specification of the content of the expression "well-founded fear" as it is used in the Convention. Perhaps all that can usefully be said is that a decision-maker should evaluate the mental and emotional state of the applicant and the objective circumstances so far as they are capable of ascertainment, give proper weight to any credible account of those circumstances given by the applicant and reach an honest and reasonable decision by reference to broad principles which are generally accepted within the international community." (p 413)
What Gaudron J said in Chan was cited with evident approval in Wu at 281.

36 The concept of "plausibility" often lies at the heart of debates about the Tribunal's decision-making processes and the question whether it has done more than apply an inadequate balance of probabilities test without moving to consider the existence of a real chance of persecution. The word "plausible" was discussed in the judgment of McHugh J in Chan when he traced the origin of the Convention definition of "refugee" to the International Refugee Organisation Constitution which was adopted by the General Assembly of the United Nations in 1946. That Constitution said that no refugee with "valid objections" should be compelled to return to his or her country of origin. One of these objections was that of "fear based on reasonable grounds of persecution because of race, religion, nationality or political opinion...". The Manual of the International Refugee Organisation proposed that "reasonable grounds" were shown where an applicant had provided "a plausible and coherent account of why he fears persecution" (emphasis added). Attempts to import that construction into the Convention criterion of a well-founded fear were not successful. McHugh J referred to Cox, "`Well Founded Fear of Being Persecuted:' The Sources and Application of a Criterion of Refugee Status", Brooklyn Journal of International Law, vol 10 (1984) 333 and said:

"But as Cox, op cit, has pointed out at p 351 the IRO approach was dictated by its inability to form an independent and objective view about conditions prevailing in the country of origin and the State parties to the Convention and Protocol will frequently have detailed knowledge of conditions in the country of the applicant's nationality. It is unlikely, therefore, that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality." (p 428)
On this basis it would seem that the plausibility of an applicant's claims may be negated by other material available to the decision-maker.

37 The Tribunal, in assessing claims and evidence before it, is required to undertake a process of "looking to the future" which is the "essence of the Chan test" - Wu at 278. Chan was acknowledged in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 as establishing that a person can have a well-founded fear of persecution even though the probability of persecution occurring is well below fifty per cent. But the joint judgment in that case went on to caution:

"... to use the real chance test as a substitute for the Convention term "well-founded fear" is to invite error." ( p 572)
The application of that test may require findings that an event might or might not occur in the future but does not require the decision-maker to engage in conjecture or surmise (at p 572). The future-looking process accepted in Wu was elaborated in Guo where it was said that:

"... unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future." (p 575)

In most cases that process will require findings of past events as the bases for inferences about what will happen in the future. The Tribunal is entitled to weigh material before it and to make findings before it engages in any consideration of whether or not a fear of persecution on a Convention ground is well-founded. If the findings are sufficiently strong, the Tribunal may not be bound to consider the possibility that they are inaccurate. The examination of past events does not require definitive findings as to their occurrence for:

"... 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." (p 576)

The question to be addressed by the Tribunal is whether an applicant has "a well-founded fear of persecution for a Convention reason having regard to possible past occurrences and possible future events" - WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [38].

38 Where the Tribunal finds that a past event has not occurred but cannot exclude the possibility that it did, that possibility may provide a basis for finding a well-founded fear of persecution in the future - Guo at 576; Abebe v The Commonwealth (1999) 197 CLR 510 at 544-545 (Gleeson CJ and McHugh J); Rajalingam at 236. If the Tribunal has no real doubt that its findings as to past events are correct, it is not bound to consider the possibility that those findings are wrong - Rajalingam at 238. Depending on the importance of the asserted past event a failure to consider the possibility that it occurred could constitute a failure to undertake the "reasonable speculation" necessary to determine whether there is a substantial basis for the claimed fear of persecution - Rajalingam at 240. Relevantly for the present case Sackville J observed, at 241:

"... the RRT's reasons may show that no consideration was given to the possibility (albeit not a likelihood) that such persecution had occurred, a possibility left open by the RRT's findings."
It is, however, impermissible, as Kenny J said in her judgment in Rajalingham at 257, to attribute to the Tribunal the Court's doubts about the Tribunal's factual findings.

39 The requirement to assess the probability or "degree of possibility" of past events was reasserted by North and Madgwick JJ in Kalala v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 212, while allowing that:

"... it would be only sensible to allow some considerable scope for reasonable variation of individual approaches on the part of decision-makers."[8]
Whether the Tribunal Erred

40 The Tribunal began its reasons with an outline of the legislative framework, referred to Art 1A of the Refugees Convention and to its interpretation in Chan and Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225. It recited the real chance test from Chan, observing that:

"A fear will be "well-founded" in this sense even though the possibility of the persecution occurring is well below 50 per cent."
It referred also to the proposition in Guo that the evidence must indicate "a real ground for believing that the applicant for refugee status is at risk of persecution". The Tribunal's outline of legal principle was in a standard form but that is not surprising in a high volume administrative decision-making system. It is not to be assumed that the Tribunal pays only lip service to the legal principles it enunciates. The Tribunal also undertook an extensive review of the evidence comprising the claims made by the respondent and his wife on their post-arrival interviews, in a statement made in support of the application for protection visas, upon interview by the primary decision-maker, in written submissions to the Tribunal and orally before the Tribunal.

41 In setting out why it had "difficulty in accepting the evidence of the [respondent] and his wife regarding the reason why they fled Iran..." the Tribunal was embarking upon a consideration of the material before it. That process did not require it to state its concluded views at the outset. An accumulation of logical or other difficulties in an applicant's claims may constitute a basis for rejecting them. Similarly, where a number of claims are made which are found to be implausible, that accumulation may warrant the global finding that they are not true, not merely that they are unlikely to have happened.

42 It is important to bear in mind that the relevant dictionary meaning of the word "implausible" is "... not having the appearance of truth, probability or acceptability" - Shorter Oxford English Dictionary. To equate this to "unlikely" as his Honour did, albeit upon the submission of counsel for the appellant, may rob it of some of its pejorative force. The significance of the Tribunal's findings of implausibility is to be viewed in the context of its reasons read as a whole.

43 His Honour said that the Tribunal did not purport to find, on probative material, that the respondent was dishonest or fraudulent. On the contrary, he noted, the respondent's claims were found to have been consistent and supported by the account given by the respondent's wife and by the letter from his lawyer. And it is true that lack of consistency in claims and supporting material may, according to the circumstances of the case, indicate invention. But that is not to say that consistency will indicate truth telling. Consistency may co-exist with fabrication as the Tribunal found in this case. The fact that the respondent's claims were supported by his wife and what was said to be his lawyer's letter again does not necessarily indicate that they were true.

44 The learned primary judge found that the Tribunal did not form any adverse impression of the respondent or his wife in respect of the presentation of their evidence in so far as it was possible to do so in a video link hearing. If this is a reference to demeanour or the way in which the respondent and his wife answered questions, it is not easy to see how any useful judgment as to credit could be founded on such matters. It is difficult enough in judicial proceedings with an English speaking witness present in person, to make any reliable assessments of credit based upon demeanour. The absence of adverse findings on credit based upon observations of non-English speakers giving evidence via video link through an interpreter is of no significance. It would have been disturbing had the Tribunal reached a view on the credibility of the respondent's claim on such grounds.

45 At the heart of his Honour's conclusion that the Tribunal erred in law was his proposition that the only basis for its complete rejection of the respondent's claims was that the Tribunal had formed the opinion that occurrence of the three events referred to by the Tribunal was unlikely. This was linked to his Honour's conclusion, later in the reasons, that:

"The statement by the Tribunal that the evidence of the [respondent] and his wife `with regard to their reasons for leaving Iran' was a `fabrication' stood as a bare assertion. It was relied upon by the Tribunal to relieve itself of the obligation to take account of the possibility of the occurrence of past events in assessing the prospect of the occurrence of future events of persecution."
With respect, this approach isolates various elements of the Tribunal's reasons from each other in a way that fails to do them justice. When read together the conjugation of difficulty in accepting various elements of the evidence, the implausibility of the claims and their non-acceptance coalesce in an unsurprising finding of fabrication. That finding, read in context, suggests that the conclusions of implausibility were more than conclusions about likelihood. For not only were the respondent's claims implausible, they were not accepted. That is to say, the Tribunal did not believe them. To read its reasons as leaving open any real possibility that the claims were true is to read them as islands of reasoning rather than as an archipelago.

46 It is no light matter to conclude that the Tribunal made a finding of fabrication "... to relieve itself of the obligation to take account of the possibility of the occurrence of past events in assessing the prospect of the occurrence of future events of persecution". It appears to amount to a finding of bad faith. That is not to say that such findings are never open. Most lawyers who have practiced for any length of time are familiar with that class of decision-maker who seeks to insulate decisions from appeal or review by cocooning them in formulaic and impenetrable assertions as to credibility based upon the dubious advantage of personal observation. But a conclusion that a finding is, in effect, false requires clear support. That support, in my respectful opinion, was not available in this case.

47 The learned primary judge did express his own views as to the impossibility or improbability of the respondent's claim in support of his conclusion that the Tribunal's use of the word "implausible" did no more than "state a view on the degree of likelihood" of the claimed events. It may be said that such an approach takes the Court into the area of merits review. I do not accept that that is always or necessarily the case. It is plain, however, that such analysis is hazardous as the court applying it can too readily slip into the error of attributing to the Tribunal its own doubts about the falsity of the claims made and thereby a failure to undertake the requisite "real chance" analysis.

Conclusion

48 In my opinion and for the reasons I have given, the Tribunal did not err in law as found by the learned primary judge. I should add that I agree with the observations of Carr J on the issue of alleged mis-translation. The appeal should be allowed, the orders made by his Honour set aside and in lieu thereof orders made that the application for review be dismissed and the respondent pay the appellant's costs of the appeal.

I certify that the preceding forty eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.




Associate:

Dated: February 2003

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W259 OF 2002





ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Appellant


AND:
W64/01A

Respondent




JUDGES:
FRENCH, CARR & FINKELSTEIN JJ


DATE:
19 FEBRUARY 2003


PLACE:
PERTH





REASONS FOR JUDGMENT
CARR J:

INTRODUCTION

49 This is an appeal from orders made by a judge of this Court on 8 August 2002. His Honour ordered that a decision of the Refugee Review Tribunal ("the Tribunal"), made on 26 February 2001, affirming a decision of a delegate of the appellant that the respondent not be granted a protection visa, be set aside and that the matter be remitted to the Tribunal for re-determination. His Honour also ordered the appellant to pay the respondent's costs of the application.

50 The review of the decision of the Tribunal was governed by the provisions of Part 8 of the Migration Act 1958 (Cth) ("the Act") before the amendments introduced by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which took effect on 2 October 2001.

THE CLAIMS BEFORE THE TRIBUNAL AND ITS FINDINGS

51 The Tribunal summarised the respondent's claims as follows:

"The Applicant was interviewed shortly after his arrival in Australia because he did not have a passport. He said that his Iranian passport had been confiscated by the Iranian authorities around 23 July 2000. He said that he and his family had left Iran at the beginning of August, travelling to Pakistan and then to Jakarta using false Turkish passports. When he was asked why he had left Iran the Applicant said that he had had a shop and one of his employees, a law student, had been involved in the demonstrations in Tehran in July 1999. He said that once when he had been away from the shop for a week visiting his father the authorities had come to search the premises. They had found documents and leaflets in the shop. The student employee had run away and the authorities had arrested another employee. The Applicant said that when he had returned to Iran the student employee had warned him not to go back to the shop because the leaflets which the authorities had confiscated were anti-government leaflets prepared by the students in the 1999 demonstrations.
The Applicant said that he had confirmed from neighbouring shops that security officers in plain clothes were waiting for him in front of his shop. He said that he had gone to Bazar (the district in Tehran `where dealings take place') and his colleagues had told him that the security forces were saying that he had been financing the student movement. He said that his lawyer had advised him to stay in hiding. He said that he had been concerned that the authorities would find out his home address so he had gone to stay with relatives. He said that after two weeks the authorities had come to his home and had searched it. He said that the Ettelaat (the intelligence service) was the most powerful department in Iran so he could not fight them. He said that his shop had been taken over and confiscated from mid-May and his home had been searched many times. He said that he had had no alternative but to leave Iran. His life had been in danger.

The Applicant also said that his wife had been in the hairdressing business and had therefore been harassed by the authorities. He said that hairdressing was not considered an appropriate business in an Islamic country and the local council office had received a confidential letter from the Ettelaat and were in the process of closing the business down. He said that his wife had been detained for a week and he had then had to pay to get her out. He said that she had been abused and mistreated in detention: they had left a tap dripping so she could not sleep and girls who had been lashed had been screaming in the cell next to hers. The Applicant said that his brother had used the deed of either his house or shop as a surety to get her out.

The Applicant's wife was also interviewed shortly after their arrival in Australia because she did not have a passport. She said that she had had her own hairdressing salon from 1988 until 2000. She confirmed the details of the Applicant's claims set out above. She said that he had gone into hiding and that the authorities had come to look for him at all hours of the day and night. She said that the house had been searched on four to six occasions and she had been verbally abused and called a traitor. They had said that she had helped somebody who was trying to bring down the Government. She said that after two months they had confiscated the Applicant's shop.

. . .

He said that the employee who had been arrested when the authorities had raided the shop, whose name was [deleted], had given an undertaking to assist the Intelligence department. The Intelligence department had taken control of the shop and had confiscated the goods and money. The Applicant said that he had received a summons through his wife to attend the Intelligence department.

The Applicant said that in June 2000 his wife had been taken from her shop. They had questioned her and had told her that they wanted to see if he would come to bail her out. The Applicant said that his brother had bailed his wife out using the title of his wife's shop. He said that on 15 July 2000 the council had sealed his wife's hairdressing shop. She had learned from a friend that the council had received a letter from the Intelligence service requesting that her shop be sealed. The Applicant said that he had thought that they could kidnap his children or do something to his family while he was in hiding. He said that while he had been in hiding he had obtained a visa to go to South Korea where he had travelled before on business but he had been concerned that his name might be on the black-list. He sad [sic] that he had a friend who knew someone who worked in the Passport Office and this friend had taken his passport there to see if he was listed. The Applicant said that his name had come up on the computer and the person at the Passport Office had taken his passport.

The Applicant said that he had known then that he could not leave the country officially so he and his family had organised to leave illegally, passing over the border to Pakistan. He said that they had paid $US7,000 each, $US3,000 in advance and a further $US4,000 when they were put on the boat to Australia in Indonesia. The Applicant said that he believed that he would be imprisoned if he returned to Iran because he had been accused by the Intelligence department of involvement with his student employee who used his shop to store pamphlets that were against the Islamic regime. The Intelligence department believed he had been involved in supporting this movement.

. . .

The Applicant said that when he had met with [deleted] he had learned that the pamphlets had been to do with the student demonstrations plus some political pamphlets of the Mujahideen-e-Khalq (Iran's largest opposition group). The Applicant said that [deleted] had told him that, in addition, he had used the fax machine in the shop to send these things overseas or internally within Iran. He said that [deleted] had told him that he had only brought this stuff to the shop after the student demonstrations in July 1999 because he had been under surveillance. The Applicant said that he did not know what had happened to [deleted] since their meeting: nobody knew whether he had escaped from Iran or what had happened to him.

The Applicant said that he had next contacted his lawyer. He said that his lawyer had advised him not to go to the shop and to leave the house and stay somewhere else. The Applicant said that his lawyer had made some inquiries and had subsequently advised him that [deleted] had not been attending university for the past year. He had been involved in politics for the last two years and was being looked for. The lawyer had said that before [deleted] had come to work for the Applicant (two years previously) he had spent six months out of Iran, in Pakistan, because he had been being sought by the authorities. The Applicant said that he did not know if [deleted] had managed to fool the authorities by disguising his appearance."

52 As the learned primary judge noted, the Tribunal also had before it a letter from the respondent's lawyer in Tehran, a translation of which stated that on 23 February 2000, the respondent had a problem with the Iranian Intelligence Services and that the lawyer had declined to act for the respondent in respect of that matter. The respondent had said, in his statement in support of the application for a protection visa, that in February 2000 his lawyer in Tehran had said that he could not help him. The respondent told the Tribunal that no lawyer in Iran would take up a matter involving a challenge to the Security Services.

53 At first instance, counsel for the respondent submitted an affidavit by an interpreter, fluent in the Farsi and English languages, who stated that he had listened to the tape-recording of the Tribunal hearing and that the recording showed that the interpreter at the hearing had failed to interpret all the words which the respondent had spoken in Farsi.

54 The Tribunal's reasons for refusing to accept that the respondent had a well-founded fear of persecution were expressed as follows [I have numbered the paragraphs to facilitate the references which I make below]:

"1. I accept that the evidence of the Applicant and his wife has been by and large consistent and that it is corroborated to a limited degree by the letter from the lawyer stating that the Applicant had a problem with the Ettelaat and that the lawyer refused to act for him in that matter. However I consider it implausible that the authorities would have suspected the Applicant of some connection with the Mujahideen-e-Khalq just because pamphlets were found in the store-room of his shop and the fax machine had been used for overseas contacts. As referred to above, the Applicant's evidence is that his student employee, [deleted], concealed the pamphlets on the premises because he was under surveillance following the student demonstrations in July 1999 and I consider that, if the Applicant's evidence were to be accepted, the suspicions of the authorities would have fallen on [deleted]. Furthermore, I consider it implausible that, if the authorities had suspected the Applicant after finding pamphlets in the store-room of his shop, they would not have searched his home immediately or at least have placed his home under surveillance so that they could arrest him as soon as he returned from Bandar Anzali. Even if, for some reason, they missed him after his return from Bandar Anzali, I consider it implausible that, if they were searching for him as he claims, they would not have located him at some time during the next five months while he remained in Iran, for example by following his wife and children to Bandar Anzali, where they met him for the Iranian New Year.
2. Accordingly I do not accept the evidence of the Applicant and his wife with regard to their reasons for leaving Iran when they did. I do not accept that the Applicant had a student employee, [deleted], who was an active member of the Mujahideen-e-Khalq, nor that pamphlets of the Mujahideen-e-Khalq were found in the store-room of his shop when it was raided in February 2000. I do not accept that the authorities were searching for the Applicant as a result of their having found these pamphlets and as a result of [deleted] having used the shop and the fax machine and the telephone at the shop for his political activities. I do not accept that the Applicant spent the five months between February 2000 and August 2000 in hiding from the authorities, nor that his home was repeatedly searched during this period, his business confiscated and his wife's hairdressing salon closed on the orders of the Ettelaat. I do not accept that the Applicant's wife was detained for about a week in June 2000 nor that she was questioned with regard to where her husband was and told that he was an anti-government agent. I consider that the evidence of the Applicant and his wife with regard to their reasons for leaving Iran when they did is a fabrication.

3. Since I do not accept the evidence of the Applicant and his wife with regard to their reasons for leaving Iran when they did I do not accept that they left Iran illegally. I do not accept that the Applicant is on the black-list of persons prevented from leaving Iran, nor that, when a friend took his passport to the Passport Office to find out if his name was on the black-list, his friend's contact checked the computer and confiscated the passport because the Applicant's name was on the black-list. Since I do not accept that the Applicant and his wife left Iran illegally, I do not accept that they will face any penalty or punishment for this reason if they return to Iran now or in the reasonably foreseeable future."

THE REASONING OF THE PRIMARY JUDGE

55 His Honour examined the three items in the respondent's account which the Tribunal said it considered to be "implausible". They were that:

* Iranian intelligence authorities would have suspected the respondent of some connection with the Mujahideen-e-Khalq just because pamphlets were found in the storeroom of his shop and the fax machine had been used for overseas contact;

* the security authorities would not have searched the respondent's home immediately or placed his home under surveillance in order to arrest him upon his return to Teheran; and

* the Security Services would not have located the respondent in the five months in which he was in hiding before he left Iran.

56 In relation to the first item above, his Honour noted that it was possible and not inherently improbable that the security forces could have acted as claimed by the respondent i.e. that they suspected on the basis of his proximity to a suspected Mujahideen operative and the presence of Mujahideen pamphlets in his shop, that the respondent had permitted his business premises to be used to support the Mujahideen cause and that this had brought the respondent to the notice of the Security Service as a person of interest.

57 In relation to the second item, his Honour commented that the respondent's case was that his home had in fact been searched some days after his shop had been entered by the Security Services and thereafter searched on four to six occasions. His Honour noted that in respect of the matter of surveillance, there was nothing before the Tribunal to show that the respondent's home was not under observation by intelligence services, and that the events related by him were obviously possible and not inherently improbable. How or when the Security Services formed a view as to what steps should be taken or how operations in respect of the respondent should be conducted, could, so his Honour reasoned, be no more than speculation on the part of the Tribunal.

58 Thirdly, his Honour considered that the Tribunal had engaged in speculation when it considered it to be implausible that the Security Services would not have located the respondent in the five months during which he was in hiding before he left Iran.

59 His Honour referred to two decisions of the High Court of Australia, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-576 and Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [83] as explaining the task which the Act required the Tribunal to carry out.

60 Rather than summarise the rest of his Honour's reasons I set them out in full below:

"The decision the Tribunal had to make was whether the applicant had a well-founded fear of persecution and, in making that decision, the Tribunal could not exclude relevant matters from its consideration. In determining whether the applicant's fear, namely that he would suffer persecution in future if returned to Iran, was well-founded, the Tribunal had to put all relevant matters into the balance and ask itself if there was a real risk that such persecution may occur. Notwithstanding that the Tribunal may not have been persuaded that past facts relied upon by the applicant had occurred as claimed by him, any assessment of the degree of risk of persecution facing the applicant in the future, had to take those claimed events into account.
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."

As noted above, at their highest, the reasons of the Tribunal recorded that the Tribunal had not been persuaded by the applicant that each of the claimed events had occurred as stated by him. The reasons did not state that the Tribunal had made a positive finding, based on probative material or logical grounds, that the events had not occurred. (See: Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 per Gummow J at [147].) The Tribunal speculated that Iranian intelligence services would not have acted as claimed and purported to rely upon that speculation to put that part of the applicant's case to one side.

The Tribunal was bound to consider the events the applicant claimed to have occurred in assessing whether there was a real chance that future events feared by the applicant may occur. (See: Abebe per Gleeson CJ, McHugh J at [85]; Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 576). Notwithstanding that the Tribunal was not satisfied affirmatively that events had occurred as claimed by the applicant, the Tribunal had to assess whether it was possible that those events involving the applicant and Iranian intelligence had occurred and had done so by reason of political opinion imputed to the applicant. Having made that assessment, the Tribunal had to proceed to determine whether the applicant had a well-founded fear of persecution by assessing whether there was a real chance that, if the applicant were returned to Iran, the applicant would be dealt with by Iranian authorities as feared by the applicant, namely, by arbitrary detention and deprivation of liberty, interrogation and extra-judicial treatment.

Having accepted that the letter from the applicant's lawyer "corroborated" the applicant's claims "to a limited degree", the Tribunal failed to analyse how that aspect of the applicant's case bore upon the existence of a real, as opposed to fanciful, risk of persecution facing the applicant at the hands of Iranian intelligence services, in particular, Ettelaat. The lawyer's letter confirmed that at the time the applicant claimed he went into hiding, the applicant had a problem involving the intelligence services in respect of which the lawyer would not risk his own position by taking up the applicant's cause. That would appear to be a circumstance of some relevance to the assessment of the extent of the risk of persecution facing the applicant, when considered together with other information within the knowledge of the Tribunal, namely, that the conduct of Iranian security and intelligence services included the regular use of torture and other acts prejudicial to the welfare and safety of persons subjected to their attention.

Importantly, the lawyer's letter confirmed that whilst in Iran the applicant feared the attention of Iranian intelligence and security services and it lent weight to the applicant's claim that he went into hiding to avoid it. The applicant's apprehension that he would be persecuted if returned to Iran, grounded as it was on a set of events that included the lawyer's reluctance to assist him, could be said to be a well-founded fear if it could be said that there was a real, and not fanciful, risk that he would be interrogated by Iranian authorities and put at risk of serious harm. If, as the Tribunal appeared to accept, the letter from the lawyer supported the applicant's claim that he was a person of interest to Iranian intelligence, the letter had to be taken into account in assessing whether there was a real risk that persecution may face the applicant if he returned to Iran. In that regard the Tribunal would have to take into account the information before it that citizens returning to Iran from abroad may be subjected to search and extensive questioning in respect to their activities abroad and in particular, whether they had been involved in conduct outside Iran opposing the Iranian regime. Therefore, the question whether the circumstances of the applicant involved the risk that the applicant would be handed to security forces upon his return to Iran, had to be given very close scrutiny. The Tribunal had to take into account that the applicant had no passport and could only be returned to Iran by arrangements made with Iranian authorities, a circumstance likely to bring him to the attention of security services before such a return.

The statement by the Tribunal that the evidence of the applicant and his wife "with regard to their reasons for leaving Iran" was a "fabrication" stood as a bare assertion. It was relied upon by the Tribunal to relieve itself of the obligation to take account of the possibility of the occurrence of past events in assessing the prospect of the occurrence of future events of persecution. As stated by the United States Court of Appeals in Bastanipour v Immigration and Naturalization Service 980 F.2d 1129 (7th Cir. 1992) at 1131:

"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."

This was not a case where the Tribunal could point to basic inconsistencies in accounts given by the applicant or his wife on previous occasions and nor was there probative material before the Tribunal to show that any part of the applicant's claims was untrue. There was no independent country information inconsistent with the applicant's claims regarding the events he said caused him to flee with his family. By describing the three events as "implausible" and by relying upon that statement to dismiss the applicant's claims in their entirety, the Tribunal misapprehended and incorrectly applied the relevant law.

The Tribunal had made no positive or affirmative findings which discredited the applicant in respect of the claimed events thereby permitting the Tribunal to discount possibilities arising out of the applicant's claims that it otherwise would have been obliged to consider. (See: Abebe per Gleeson CJ and McHugh J at [85], Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 576.)

It follows that the Tribunal failed to carry out the review process it was charged to perform by the Act, that failure being rooted in the misinterpretation by the Tribunal of the relevant law in respect to the meaning of "well-founded fear of persecution", or in the misapplication of that law to the facts, thereby providing ground for review under s 476(1)(e) of the Act. Further, it may be said that the Tribunal failed to take into account a relevant consideration, or failed to ask and determine the correct question in purporting to make the decision that it was not satisfied that the applicant had a well-founded fear of persecution. In those circumstances ground for review also arose under s 476(1)(b) or (c) of the Act. (See: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 per Gleeson CJ at [10], McHugh Gummow and Hayne JJ at [76]-[83].)

The applicant having established the grounds for review set out above, it is unnecessary to deal with the further grounds relied upon in the amended application, namely, that there was a failure by the Tribunal to observe a required procedure by failing to have the applicant's statements adequately interpreted in the course of the hearing conducted by the Tribunal (s 476(1)(a)), or that the decision of the Tribunal was based upon non-existent facts (s 476(1)(g), s 476(4)(b))."

THE APPEAL

61 In summary, the notice of appeal asserts the following grounds:

* his Honour's analysis of the facts was a criticism of the weight which the Tribunal had attributed to the different items of information before it and of the reasoning process adopted by it in reaching its factual conclusions. Those criticisms were not sound and, even if they were sound, did not establish an error of law;

* the Tribunal had considered whether the past events involving the respondent had occurred;

* it concluded that the evidence of the respondent and his wife was a fabrication;

* a fair reading of its decision was that the respondent did not face a real chance of persecution for a Convention reason if he returned to Iran; and

* there was nothing in the Tribunal's reasons to indicate that it had any real doubts as to its finding that the past events involving the respondent did not occur and that therefore its conclusion that the evidence of the respondent and his wife was a fabrication, might be wrong.

MY REASONING

62 The learned primary judge saw, as an "obvious point" emerging from the passages set out at paragraph [6] above that the Tribunal did not purport to find, on probative material, that the respondent was dishonest or fraudulent.

63 I deduce from that observation that his Honour's focus was on what he perceived to be an absence of probative material. Because, in my respectful view, it is quite clear that the Tribunal did find that the respondent was dishonest or fraudulent. I refer to the last sentence in the paragraph numbered 2 of the three paragraphs which I have set out above from its reasoning where the Tribunal said:

"I consider that the evidence of the Applicant and his wife with regard to their reasons for leaving Iran when they did is a fabrication."
64 I think that it is sufficiently clear from the above sentence that the Tribunal formed an adverse impression of the respondent and his wife and disbelieved their claims. The use of the word "fabrication", in my opinion, amounts to a very strong credibility finding against the respondent.

65 In making that observation I should not be taken as endorsing, in the slightest degree, the reasoning process adopted by the Tribunal in making that finding. I select an example of what might be considered to be an error, but not a judicially-reviewable error, in the Tribunal's approach. It might seem that the Tribunal chose to assess the respondent's claims separately from the lawyer's letter and, having disbelieved those claims, decided to attach no weight to the lawyer's letter. This was the course which it foreshadowed in response to an observation from the respondent's representative at the hearing - see p 15 of the Tribunal's reasons. Logic would have dictated, it might be thought, that the lawyer's letter should have been taken into account when assessing the likelihood of the respondent's claims that he had come under suspicion from the Ettelaat.

66 But a fair reading of paragraph numbered 1 of the extract from the Tribunal's reasons above shows that it did take into account the lawyer's letter as corroborating to a limited degree the evidence of the respondent and his wife, but decided to attach no weight to that letter.

67 The three matters which the Tribunal found, in that paragraph, to be implausible can be seen to have led, by a cumulative process, to the Tribunal's refusal to accept the various matters in paragraph numbered 2 in the extract, and eventually to its conclusion that the evidence of the respondent and his wife was a fabrication.

68 I share the learned primary judge's concerns about the sufficiency of the Tribunal's explanation for its conclusion. But, as Kenny J observed in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 at 257:

"A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning: [several authorities cited]. In my view, the effect of his Honour's judgment was to turn what his Honour saw as doubtful fact-finding into an error or law. What his Honour did, I think, was erroneously attribute to the RRT the doubts his Honour had about the facts the RRT had found."
69 In the present matter the Tribunal expressed no doubt about its findings of fact when it concluded that the evidence of the respondent and his wife was a fabrication. In my view, no such doubt should be imputed to it by way of implication.

70 In those circumstances, in my opinion, the Tribunal was not obliged to consider whether its findings might be wrong: Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576. See also Sackville J in Rajalingam at [63] to [65].

71 In my respectful opinion the primary judge fell into error in attributing legal and jurisdictional error to the Tribunal.

THE TRANSLATION

72 As I have mentioned above, the respondent placed before the primary judge affidavit evidence by which he sought to show that the translation of the proceedings before the Tribunal fell below the required standard. His Honour did not have to deal with that point.

73 Although the respondent did not file a notice of contention, at the hearing of the appeal we treated him as having done so in relation to the mis-translation point (without any objection from the appellant).

74 In essence, the respondent's submission was that although there were no key mis-translations which in themselves went to matters of substance, the translation, taken cumulatively, showed continued confusion so that the respondent's credibility was affected.

75 As counsel for the respondent acknowledged, in the end, the respondent's claims were well understood but rejected. In my view, it has not been established that any defects in the translation, whether individually or cumulatively, deprived the respondent of a fair chance of presenting his case.

CONCLUSION

76 For the foregoing reasons I would allow the appeal, set aside the orders made at first instance, dismiss the application and order that the respondent pay the costs of the appellant at first instance and on appeal.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.




Associate:

Dated: 19 February 2003

IN THE FEDERAL COURT OF AUSTRALIA



WESTERN AUSTRALIA DISTRICT REGISTRY
W259 of 2002




On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Appellant


AND:
W64/01A

Respondent




JUDGES:
FRENCH, CARR & FINKELSTEIN JJ


DATE:
19 FEBRUARY 2003


PLACE:
PERTH





REASONS FOR JUDGMENT
FINKELSTEIN J:

77 I agree in the reasons of Carr J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.




Associate:

Dated: 19 February 2003

Counsel for the Appellant:
Mr L A Tsaknis






Solicitor for the Appellant:
Australian Government Solicitor






Counsel for the Respondent:
Mr H Christie






Solicitor for the Respondent:
Messrs Christie & Strbac






Date of Hearing:
12 December 2002






Date of Judgment:
19 February 2003


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