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MIGRATION - Review of a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding applicant's fear of persecution was not well founded - obligation of the Tribunal to provide applicant with natural justice - satisfied by provision of s.424A letter - application dismissed.

SCAN v Minister for Immigration [2002] FMCA 129 (9 July 2002)

SCAN v Minister for Immigration [2002] FMCA 129 (9 July 2002)
Last Updated: 30 January 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SCAN v MINISTER FOR IMMIGRATION
[2002] FMCA 129



MIGRATION - Review of a decision of the Refugee Review Tribunal - whether the Tribunal erred in finding applicant's fear of persecution was not well founded - obligation of the Tribunal to provide applicant with natural justice - satisfied by provision of s.424A letter - application dismissed.



Migration Act 1958 (Cth) ss. 36, 65, 424A

Briginshaw v Briginshaw (1938) 60 CLR 336

Abebe v Commonwealth of Australia (1999) 197 CLR 510

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82

Mahon v Air New Zealand Ltd (1984) AC 808

Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109

Naing v Minister for Immigration & Multicultural Affairs [2000] FCA 344

NAAG v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 713

Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565

Applicant:
SCAN



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


AZ 137 of 2002



Delivered on:


9 July 2002



Delivered at:


Adelaide



Hearing Date:


27 June 2002



Judgment of:


Raphael FM



REPRESENTATION

Counsel for the Applicant:


Mr J Keen appearing pro bono



Solicitors for the Applicant:


Refugee Advocacy Service of South Australia



Counsel for the Respondent:


Ms S Maharaj



Solicitors for the Respondent:


Sparke Helmore



ORDERS

(1) Application dismissed.

(2) The Applicant pay the Respondent's costs in the sum of $2,500.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

ADELAIDE


AZ 137 of 2002

SCAN


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. This is an application for the review of a decision of the Refugee Review Tribunal constituted by Giles Short made on 25 February 2002. The decision affirmed a decision of the delegate of the Minister made on 17 December 2001 refusing the applicant a protection visa (class XA). The applicant is a citizen of Iran. He arrived in Australia in August 2001 and applied for his protection visa on 25 September 2001.

2. The circumstances in which the applicant claimed a "well-founded fear of being persecuted" in order to bring himself within s.65 of the Migration Act 1958 (Cth) and the criteria set out in s.36 of the Act and Part 785 and 866 of Schedule 2 to the Migration Regulations are described below. The Tribunal did not accept the evidence of the applicant and found that he did not have a well-founded fear of being persecuted for a Convention reason.

3. The applicant seeks review of the decision of the Tribunal on the narrow basis that the Tribunal denied the applicant natural justice by making a finding as to the fabrication of certain documents without giving the applicant an opportunity to make representations and provide evidence that would refute the findings to which the Tribunal intended to come.

4. The applicant and the respondent agreed that if I should come to the view that a denial of natural justice had occurred then I would inform the parties and I would postpone making a final decision in the matter until after a specially constituted Full Bench of the Federal Court of Australia had handed down judgment in a number of appeals which were heard earlier this month. It is expected that those judgments will be handed down in August 2002.

5. The finding which the Tribunal made related to the marital status of the applicant. The applicant had maintained that he was engaged or married to a woman whose father was a Mullah, a deeply religious man, a prayer leader in a Mosque with close associations to Ettelaat (the Ministry of Intelligence and Security). Prior to his betrothal the applicant had been a shopkeeper. He alleged that his father-in-law had suggested to him that he obtain a more secure form of employment and offered to assist him. The applicant agreed to do this and was sent to a building in Mirdamad Street in Tehran. When he got to the office he discovered that it was an Ettelaat office and he was asked to complete some forms and it was suggested to him that he would be required to do observation or intelligence work. He had returned to his home and told his father-in-law that he did not wish to work for the Ettelaat but his father-in-law had told him that he had no option as he had already gone there and enrolled. He claimed that his father-in-law threatened to cause problems for him and his brother by planting drugs in his shop unless he agreed to work for the organisation. The applicant claimed to have had a serious argument with his father-in-law, insulted the Supreme Leader and shortly after left. He apparently had gone twice to the Ettelaat offices and it was only on the second occasion that he realised what was being required of him.

6. The parts of the decision in respect of which the applicant complains deal with the Tribunal's view about the applicant's marriage and in particular the finding by the Tribunal that certain documents produced by the applicant in corroboration of his story are fabrications. The first extract appears in [136] of the Court book:

"Any one of these problems with the Applicant's evidence might not, in itself, be sufficient to cast doubt on his credibility. However, taking into account the cumulative effect of these problems I conclude that the Applicant is not a witness of truth. I consider that he has demonstrated that he is prepared to tailor his evidence to what he perceives to be his advantage. I do not accept that the Applicant was engaged to be married or married to a woman whose father was a Mullah or an Akhound, a teacher at the mosque or a prayer-leader at a mosque, or one of the heads of the Ettelaat. As indicated above, I do not accept that a person of this character would have agreed to his daughter marrying a person like the Applicant, who by his own evidence does not consider it important to go to the mosque and is opposed to the concept of the Supreme Leader. As I put to the Applicant, I consider that he has altered his evidence with regard to whether he was married or merely engaged to be married to fit in with the document he produced, purporting to require him to attend the Family Court in Tehran. Since I do not accept that the Applicant was married, as he now claims, I consider that this document is a fabrication, procured in an attempt to provide corroboration for the Applicant's narrative."

7. There is a further allegation of fabrication made in the paragraph set out below from [137] of the Court Book:

"Having regard to the view I have formed of the Applicant's credibility, and the fact that I do not accept that he was engaged to be married or married, nor his account of his attempted recruitment by the Ettelaat, I do not accept the account which the Applicant gave in his letter dated 11 January 2002 of his last fight with his claimed father-in-law, which he now says took place on the same day he claims the Ettelaat came to arrest him. I do not accept that he expressly insulted the regime, the Supreme Leader of Iran, the government officials and his claimed father-in-law, nor that he accused them of `theft, misuse of public funds, moral corruption and committing treason against [the] people of Iran'. I do not accept that after this the Ettelaat brought a case against him in court for insulting the leader of the Islamic Republic. As indicated in the Tribunal's letter dated 30 January 2002, it appears to me that the Applicant has altered his evidence in an attempt to make it clear that (contrary to the finding made by the primary decision-maker) he had manifested a political opinion opposed to the regime in Iran. I do not accept that the document which the Applicant produced, requiring him to attend the Public Court in Tehran `to give explanation', in fact relates to the complaint supposedly brought against him by the Ettelaat, accusing him of insulting the leader of the Islamic Republic. Since I do not accept that he was facing any complaint in the courts and I therefore consider that this document, like the other document which the Applicant produced, is a fabrication, procured in an attempt to provide corroboration for the Applicant's narrative."

8. The Applicant filed three affidavits. One by himself and two by a translator. The affidavit of the translator contained nine annexures being copy documents and translations of those copy documents from Persian into English. Annexures A, B and C were before the Tribunal, the other documents were not. The applicant also produced the originals of documents A, B and C.

9. The second affidavit of the translator amended a date in exhibit E of

31 January 2001 to 31 January 2002 and another date from 29 January 2001 to 29 January 2002. These documents were accepted by me solely on the basis that they constituted the type of document which could have been provided to the Tribunal to corroborate the testimony of the applicant and to refute the proposed finding of fabrication. It was agreed that I would pass no judgment upon the documents themselves.

10. The applicant contends that the finding of fabrication is a most serious one to which the standard of proof suggested in Briginshaw v Briginshaw (1938) 60 CLR 336 would apply. The fallacy in that argument is that Briginshaw relates to adversarial proceedings and requires the person asserting the fact to prove it to the higher standard. These proceedings are inquisitorial. The Minister is not represented. The Tribunal is not in a position of a contradictor (Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [187]). In Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Gaudron and Gummow JJ said at [115]:

"There is no universal proposition that before the Tribunal ever makes a finding adverse to an applicant, it is necessary for the Tribunal to put to the applicant the concerns which are inclining the Tribunal towards such an adverse finding. The procedure is inquisitorial and not adversarial."

11. Their Honours went on to quote this observation of Lord Diplock in Mahon v Air New Zealand Ltd (1984) AC 808 at [160] articulating one of the rules of natural justice:

"The second rule requires that any person represented at the inquiry who will be adversely affected by the decision to make the finding should not be left in the dark as to the risk of the finding being made and thus deprived of any opportunity to adduce additional material of probative value which, had it been placed before the decision maker, might have deterred him from making the finding even though it cannot be predicted that it would inevitably have that result."

12. It is the applicant's argument that the Tribunal should have squarely told the applicant that because it did not believe his story regarding his marriage it would find that the documents which he had produced were fabrications and following from that finding would come to the conclusion that he was not a person who had a real fear of persecution.

"In particular, if it is accepted that the applicant was to be called before the public court to give explanation in relation to comments against the Iranian government and/or refusal to participate in a corrupt State system, the applicant would have a well-founded fear of persecution under Article 1A(2) of the Refugees Convention which applies to the granting of protection visas due to s.36 of the Migration Act and Part 785 and 866 of Schedule 2 to the Act; see Zheng v MIMA [2000] FCA 670 per Merkel J and Minister v Y (unreported, Davies J, 15 May 1998)." (Applicant's outline of argument at [10])

13. The difficulty which the applicant faces is that on 30 January 2002 he received a lengthy letter from the Tribunal. The letter he received is known as a s.424A letter from the number of the section in the Migration Act requiring the Tribunal to give the applicant particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review. The most significant paragraph of that long letter is the following:

"At the hearing before the Tribunal you said you were in fact married. You said that in Iran, when a couple were engaged they went to the Registry office. All that was left was to have the wedding reception or party. You have produced what purports to be a document requiring you to attend the Family Court in Tehran and referring to a claim or complaint by your spouse. The inconsistency in your evidence with regard whether you claimed to have been married or merely engaged to be married casts doubt on whether you are telling the truth. As the member constituting the Tribunal put to you in the course of the hearing on 21 January 2002, it raises the questions whether you have altered your evidence to fit in with the document you have produced (which suggests that you are married, not merely engaged, as you said previously)."

14. The respondent says that this letter indicates to the applicant in clear terms the Tribunal's concerns about the document and the nature of the evidence of the applicant. The applicant says that this paragraph puts emphasis on the oral evidence and does not lead the applicant to understand that the document is likely to be impugned. This, he says is a breach of s.424A(1)(b) which requires the Tribunal to:

"(b) ensure, as far as reasonably practical, that the applicant understands why it is relevant to the review."

15. It should be noted that after the letter of 30 January was received the Migration agents acting on behalf of the applicant wrote to the Tribunal in the following terms:

"Dear Member,

You wrote to our client on 30 January 2002 asking him to comment on the content of that letter. Given the detail in that letter it is not possible to provide a response by the deadline 8 February. We are currently getting one document translated and we will get that to you as soon as we can. Please allow an appropriate extension of time."

16. The applicant's time was extended until March 2002 and on 19 February 2002 the Migration agents sent to the Tribunal a four page letter in response. The letter addressed the applicant's marital situation and provided a reason for the confusion.

17. Section 424A is not concerned with the subjective thought processes of a Tribunal member (Tin v MIMA [2000] FCA 1109 at [53]; Naing v MIMA [2000] FCA 344 at [31]; see also Abebe v Commonwealth (1999) 197 CLR 510 at 576 per Gummow and Hayne JJ).

18. It is my view that any obligation to provide the applicant with natural justice whether the same exists in general law or solely under s.424A of the Migration Act, was in this case complied with by the s.424A letter and the response made on behalf of the applicant. The applicant may never have dreamt that the Tribunal would have come to the findings which it did, and in particular base its views as to the authenticity of a document, upon the Tribunal's own assessment of whom an Iranian father-in-law might choose as a suitable husband for his daughter. But these are matters which are within the fact finding powers of the Tribunal. In coming to this state of satisfaction by the Tribunal:

"whether capricious, arbitrary or lacking in probative foundation or a rational connection with the circumstances present, or fanciful is within the lawful authority and the jurisdiction of the decision maker to reach." (NAAG v MIMIA [2002] FCA 713 at [13]; see also the comments of Hill and Stone JJ in Gamaethige v MIMA [2001] FCA 565).

19. In the light of these findings there is no utility in awaiting the decision of the Full Bench of the Federal Court as the only matters put to me related to the lack of procedural fairness arising out of the failure of the Tribunal to inform the applicant that it intended to come to a conclusion that the documents were fabrications. As I have found that there was no procedural error involved the application must be dismissed and the applicant must pay the respondent's costs which I assess at $2,500.00 pursuant to Part 21 rule 21.02(2)(a) Federal Magistrates Court Rules.

20. I note in this matter that the applicant was represented pro bono. It is appropriate that the court should recognise the contribution of members of the legal profession to the efficient administration of justice and the protection of human rights by appearing in these matters on this basis.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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