FEDERAL COURT OF AUSTRALIA

SAAD v Minister for Immigration & Multicultural Affairs

[2002] FCA 206

SAAD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.177 of 2001

MANSFIELD J

15 MARCH 2002

ADELAIDE

THE COURT ORDERS THAT:

1.      The application is dismissed.

2.      The applicant pay to the respondent costs of the application to be taxed.

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

REASONS FOR JUDGMENT

1                     On 5 October 2001 the applicant applied to review a decision of the Refugee Review Tribunal (the Tribunal) given on 18 September 2001.  The Tribunal affirmed a decision of a delegate of the respondent given on 4 December 2000 refusing to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) (the Act) on 7 October 2000.  Because the application to the Court was lodged after the commencement of the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), the Act as amended by that amending Act applies to the determination of the present application:  Schedule 1, Item 8(2)(b) of the transitional provisions.  Consequently, the Court has jurisdiction to entertain the application under s 39B of the Judiciary Act 1903 (Cth), but otherwise has no jurisdiction to entertain the application:  see ss 475A and 477 of the Act.  Moreover, as the Tribunal’s decision is a “privative clause decision” as defined in s 474(2) of the Act, s 474(1) of the Act applies.  It provides that the decision of the Tribunal is final and conclusive, cannot be challenged or reviewed or called into question in any court, and is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 

2                     The respondent acknowledges that the literal breadth of s 474 cannot oust the jurisdiction of the Court entirely.  He accepts that the Court may review the decision of the Tribunal in limited circumstances, namely those contained in the principles expressed by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616.  In addition, by reason of the observations of Dixon J in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 399-400, if there is a relevant inconsistency between a provision of the Act which defines and restricts the power of the Tribunal and prescribes the course it must pursue, and the provisions of s 474(1), then that inconsistency or apparent inconsistency should be resolved by interpreting the Act as a whole, including the particular provisions in context.  It is of course inappropriate to address such issues on a theoretical basis.  Accordingly, it is desirable first to identify in what respects, if any, the Tribunal’s decision indicates some reviewable or potentially reviewable error which may be amenable to the Court making an order under s 39B of the JudiciaryAct, and if such potentially reviewable error is exposed, then to consider whether in the light of s 474(1) of the Act, the Court has the power to grant relief and should do so.

THE TRIBUNAL’S REASONS

3                     The applicant is a single man from Iran.  He is about 30 years of age.  He first arrived in Australia on 28 March 2000, having left Iran nearly six weeks beforehand.  To be eligible to be granted the visa, it was necessary that the delegate of the respondent, and on review the Tribunal, be satisfied that the criteria for the grant of the visa specified in the Act and the Migration Regulations were met.  Relevantly for present purposes, s 36(2) of the Act prescribed the criterion that the applicant be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention).  Australia would owe protection obligations to the applicant under the Convention if the delegate of the respondent and, on review, the Tribunal was satisfied that he is a “refugee” as defined in Article 1A(2) of the Convention.

4                     The applicant’s claims as to why he is a refugee varied over the course of time.  He was first interviewed by an officer of the respondent on 1 April 2000.  He then said that he left Iran on a valid passport in his own name, legally and openly, and he did so because he did not like living in Iran.  He thought it did not respect individuals, and provided him and others with little opportunity to advance in life.  He said that he had no particular concerns with the way he had been treated in Iran, and in particular did not identify any concerns which might give rise to a well-founded fear of persecution for a Convention reason if he were to return there.  The applicant gave a different version of the circumstances in which he left Iran, and why he did not want to return there, when he made his application for a protection visa on 7 October 2000, and yet a further and different claim in the period between the two hearings conducted by the Tribunal in relation to his claim on 6 March and 26 June 2001.  At the hearing on 6 March 2001 he had added the claim that he feared persecution if he were to return to Iran by reason of him having applied for the protection visa within Australia.  On 16 May 2001, by documents submitted by his migration agent, he maintained that claim and also said that he feared returning to Iran because, since he had been in Australia, he had been studying and proposed to convert to Christianity, and that he would be mistreated upon his return to Iran by reason of his conversion from Islam.  At the hearing on 26 June 2001 initially he maintained those further claims and enhanced them, in response to questions asked by the Tribunal, in particular providing further details in support of them, and, in the case of his claim to fear persecution by reason of his imminent conversion to Christianity, he said that fear was enhanced because he would be unable to avoid the wish to evangelise once he had returned to Iran.  It may be noted that the applicant was baptised a Christian on 28 August 2001, and notified the Tribunal prior to its decision.

5                     Towards the conclusion of the hearing on 26 June 2001, the applicant resiled substantially from the claims that he had made.  He had previously told the Tribunal that he had completed his national service in about 1991, and then worked as a machinist with a private company until 1994 when he was invited to, and undertook, work for the Sepih, the Iranian Public Service, as a machinist.  He claimed that in about February 1996, he was suspected of co-operating with an anti-government group, he believed due to his friendship with a co-worker.  He said he was arrested and detained and beaten.  He was held for some months before he was judicially discharged.  He maintained that claim.  In fact, he told the Tribunal that he had then been unable to return to work with Sepih, and worked long hours as a door to door salesman for little reward.  He had limited means and found his situation to be hopeless.  He was unable to earn sufficient to be able to be eligible to marry, and did not in a practical sense enjoy any freedom or quality of life.  It was for that reason, he said, that he then decided to leave Iran and to come to Australia.  He confirmed on that occasion that he had left Iran legally and openly, due to his hopeless situation within the community and to his concerns about human rights abuses conducted by the authorities, although he himself had not been a victim of them, other than for the arrest and subsequent mistreatment in the six month period in the first half of 1996.

6                     He had previously told the Tribunal that in about mid-1999, due to his concerns about the human rights abuses of the regime, he had become interested in opposing it.  He had made some contacts, and became part of a group of about 30 persons who were involved in regular meetings, printing and distributing anti-government leaflets.  He had assumed that interest following a demonstration by students.  In early February 2000, at a meeting at which he had not been present, the ring leader of that group was arrested.  He then feared, he claimed, that he would be arrested himself for his involvement in that group, and so contacted a smuggler to secure his egress from Iran.  He feared mistreatment upon his return because of his anti-government activities, known to the authorities.  It was that part of his claims which he subsequently told the Tribunal towards the end of the second hearing were simply not true.  Although he was concerned about human right’s abuses, particularly following student demonstrations in 1999, he himself had suffered no adverse consequences which could amount to persecution of him, or which led him to have any fear, much less a well-founded fear of persecution at the time he left Iran, or if he were now to return there.

7                     He did, however, maintain before the Tribunal his claim to have been studying with a view to converting to Christianity.  He produced a certificate from Father Monaghan confirming that he was undertaking study towards becoming a Christian whilst a resident at the Woomera Immigration Processing and Detention Centre.  He said that he feared persecution in Iran if he were to return there, because although Christians in Iran do exist and do practise their religion, it was not tolerated for a Muslim to convert to Christianity and that the penalty for apostasy was death.  He also said that he feared that he would be unable to resist evangelising if he were to return to Iran, so that there was a real chance that he would attract the attention of the authorities for those activities and be identified as an apostate.

8                     Not surprisingly, the Tribunal remarked that:

“However, given his demonstrated preparedness to construct and fabricate claims for the sole purpose of achieving his aim to remain in Australia through the grant of a protection visa his credibility is so damaged that I am left with serious doubts in regard to these remaining matters (that is, the claims from which he had not resiled in the course of the second hearing).”

The Tribunal addressed those claims in turn.

9                     It considered that his claim to have been detained and held for six months in 1996 was presented by the applicant at the hearing in a vague way, and that at times he was evasive.  It was unable to understand his failure to make mention of the incident of his arrest and detention when he was first interviewed on 1 April 2000, particularly as he was explicitly asked then why he had left Iran.  The nature of the questions he was then asked made it plain to him the significance of giving accurate answers at that time, but when asked why he had left Iran he stated “nothing happened to me”.  The Tribunal therefore concluded that the applicant did not mention that incident at his first interview because it did not occur.  It found specifically that the claim was a fabrication.

10                 It also had reservations about whether the applicant had an association with a protest group from about 1999 as he claimed.  In any event, as the Tribunal noted, neither the applicant nor anyone else in that group suffered any adverse consequences by reason of membership of such a group, and the Tribunal concluded that there was no chance that he would suffer any adverse consequences by reason of his membership of such a group if he were to return to Iran.  It also concluded that, because the applicant had made no mention of that matter when he was first interviewed on 1 April 2000, he held no fear of adverse consequences upon return to Iran by reason of his membership of such a group.

11                 Finally, the Tribunal addressed the applicant’s claim to have converted to Christianity.  The Tribunal accepted that the applicant has undertaken a course of study towards conversion to Christianity since he has been in the Woomera Immigration Detention Centre, and that he has been baptised.  However, the applicant had acknowledged to the Tribunal that he had fabricated claims to support a claim to have a well-founded fear of persecution for a Convention reason when he had been told, following his interview on 1 April 2000 that those matters he then raised were not likely to make him eligible for a protection visa.  His claim to conversion was not made prior to the Tribunal’s hearing first on 6 March 2001.  His commencement of attending Christian service at the Woomera Immigration Processing and Detention Centre corresponded more or less with the occasion of that hearing and after the Tribunal had expressed to the applicant its concerns about the credibility of his other claims then made.  Consequently, it found that the applicant’s move to embrace Christianity occurred after he had been notified by the Tribunal, by letter of 24 February 2001, of matters which the Tribunal regarded as significant personal factual matters adverse to his claim pursuant to s 424A of the Act, and the hearing of 6 March 2001 when the Tribunal had repeated its concerns that his claims to that point may be false.  The Tribunal considered the possibility that the applicant’s appearance of conversion to Christianity could be genuine and coincidental in timing.  However, having regard to the pattern of the applicant’s claims over the course of the application, it found that his conversion to Christianity was “yet another instance of opportunism and a claim of convenience”.  It found the claim to be contrived and that the applicant is not a genuine convert and therefore that he does not face a real chance of persecution by reason of his claimed conversion to Christianity if he were to return to Iran.  Nor did it accept that he would be motivated to proselytise if he returned to Iran.  It said:

“However, since I find, without reservation, that the applicant has converted to Christianity opportunistically and thus find he has no real commitment I accordingly find that he would not proselytise if he returned to Iran now or in the reasonably foreseeable future.”

12                 The Tribunal nevertheless considered the prospect that, because the applicant has publicly engaged in a conversion to Christianity, at least within the limits of the Iranian community in the detention centre, there may be a prospect that the authorities in Iran would become aware of this and impute to him a genuine conversion.  It considered that the chance of that occurring would be remote, but in any event on the basis of independent country information, concluded that a person of the applicant’s standing within Iran would not be of interest to the authorities even if they assumed that he had converted to Christianity.  It found that he is otherwise of no political interest to the authorities in Iran and did not come within the category of persons who, by reason of their standing, would attract the authorities’ attention for having converted to Christianity.

13                 Consequently, the Tribunal did not accept that the applicant’s reasons for his conversion to Christianity are genuine, and found that he has converted to Christianity solely for the purpose of providing a basis for a protection visa.  It found as a fact that he would not proselytise in Iran.  There is only a remote chance that the Iranian authorities would become aware of his conversion, by reason of others in the Woomera Immigration Processing and Detention Centre learning of it, but it found positively that the applicant would in any event be of no adverse concern to the authorities and he would not face a real chance of persecution in Iran by reason of his conversion to Christianity in any event.  Furthermore, as he was not at the time he left Iran of any adverse interest to the authorities, it concluded that his claimed conversion to Christianity would create no additional impediment to his safe return to Iran.

14                 The Tribunal was therefore not satisfied that the applicant is a person to whom Australia has protection obligations under the Convention, and affirmed the decision of the delegate of the respondent to refuse to grant the applicant the protection visa.

THE APPLICATION FOR REVIEW

15                 The application for review before the Court does not identify any grounds upon which the application is brought.  It complains in general terms of the decision of the Tribunal, and suggests that the Tribunal did not properly understand the applicant’s problems in Iran.  He also filed a statement entitled “affidavit” in support of that application.  It too, in large measure, asserts the accuracy of the version of events which the applicant ultimately submitted to the Tribunal as the reasons why he claimed to be a refugee, and of a failure on the part of the Tribunal to accept those reasons.

16                 To the extent that the grounds of appeal identified in the application, or in the “affidavit” challenge the merits of findings of fact made by the Tribunal, those matters do not give rise to any ground of review which might found the exercise of the jurisdiction available under s 39B of the Judiciary Act.  It is not open to the Court to undertake a review on the merits of findings of fact by the Tribunal, particularly where those findings of fact are based upon evidence available to it.  The applicant, in oral submissions, also repeated many of those complaints about the Tribunal’s findings of fact.  In one respect, he submitted that the Tribunal had failed to have regard to his claims at all.  On 3 July 2001, he had submitted to the Tribunal a lengthy statement of his claims.  He contended that the Tribunal had not had regard to it.  However, the Tribunal’s reasons expressly quote that statement in its entirety, referring to it as a further submission and a further statement received by the Tribunal after the second hearing.  There is no merit in that contention.

17                 There remains the applicant’s principal contention that the Tribunal erred in the way it went about resolving and deciding his claim to have converted to Christianity, and the consequences of that conversion to him upon his return to Iran.  In his “affidavit” he claimed that the Tribunal had referred only selectively to a letter of support provided by Father Monaghan, and had failed to call evidence from a Mr Mansourian to establish that his interest in Christianity had existed for longer than the few months which the Tribunal had found, as it noted in the passages referred to above, coinciding more or less with the time when the Tribunal at the first hearing indicated to the applicant that his other claims were unlikely to succeed, and coinciding with the notice given under s 424A of the Act.  Subsequent to the hearing before the Court, the Tribunal submitted a further letter from Mr Mansourian certifying that the applicant had commenced the “Word of Life” Bible Correspondence Course on 22 May 2001.  The respondent has not had an opportunity to comment upon that material.  However, it does not advance the applicant’s case.  The Tribunal looked to the motives for the applicant’s decision to convert to Christianity.  It discerned a significant time, about the start of March 2001, as when his interest in Christianity commenced.  That document does not indicate that his Christianity commenced at an earlier point than that.  Mr Mansourian also asserts that the applicant, in his opinion, has shown that he is a genuine Christian.

18                 I also do not accept that the Tribunal has quoted only selectively from the letter from Father Monaghan to the Tribunal of 4 May 2001.  Relevantly, it reads:

“ Mr ……. has been attending the Christian service at the Sierra Compound for about the last two months, although he had made himself known to me, including his interest in the Christian faith, prior to this time …”

The Tribunal’s recital of the course of the hearing on 26 June 2001 indicates its interest in the timing at which the applicant had decided to become a Christian.  It records that it specifically asked the applicant whether he had decided to become a Christian prior to the hearing on 6 March 2001, and he said that he had.  Father Monaghan’s letter does not support that claim.  The Tribunal listened to the tape of that earlier hearing, and noted that the applicant had taken an oath on the Koran on 6 March 2001 at the first hearing.  It noted that, at the hearing on 6 March 2001, the applicant had not then presented any claim to be a refugee on the basis of his proposed conversion to Christianity.  The Tribunal also was aware that the applicant had spoken to Father Monaghan prior to about the start of March 2001.  Father Monaghan gave information to the Tribunal at the hearing.  He said he had first met the applicant around Christmas of 2000, but that they didn’t meet regularly until February 2001, a time estimate consistent in general terms with the Tribunal’s appreciation of what he had to say.  Moreover, the Tribunal in that section of its reasons for decision dealing with its findings and conclusions, expressly quotes the letter from Father Monaghan of 4 May 2001 including all of that passage identified as relevant and quoted above.  It was in the light of the whole of the evidence that the applicant was found to have moved:

“ … to embrace Christianity, rather than to look at it out of curiosity, … after my s 424A letter and the hearing in March 2001 and after I had made him aware of my concerns and my reasons for the concern that his claims to that point were false.”

19                 In my view, the Tribunal has not misquoted nor taken out of context the letter from Father Monaghan of 4 May 2001 or his evidence generally.

20                 When the Tribunal invited the applicant to attend the hearing on 6 March 2001, it complied with s 426(2) by informing the applicant that he may indicate to the Tribunal if he wanted it to obtain oral evidence from any other person.  By response dated 20 January 2001, the applicant indicated that he did not want the Tribunal to take oral evidence from any witnesses.  His migration agent sent a response to that hearing invitation also, dated 26 February 2001, which also did not contain any request that the Tribunal take oral evidence from any witnesses.  Of course, at that time, the applicant had made no claim to have converted to Christianity or to fear persecution upon return to Iran by reason of that conversion or related to it.  The Tribunal also invited the applicant to attend the hearing on 26 June 2001, again including the notification required by s 426(2) of the Act.  On that occasion, the applicant by response dated 22 June 2001 indicated that he wanted the Tribunal to take oral evidence from Mr Mansourian and from Father Monaghan.  By response bearing the same date provided to the Tribunal by the applicant’s migration adviser, he indicated that he wanted the Tribunal to take evidence from Father Monaghan only.  In fact, as noted earlier, Father Monaghan attended the Tribunal and did give evidence.

21                 Under s 426(3) of the Act, if it is notified by an applicant that the applicant wishes the Tribunal to obtain oral evidence from a person or persons named in the notice, the Tribunal is to have regard to the applicant’s wishes.  It is not required to obtain evidence from the persons named in that notice.  In this matter, the Tribunal has not adverted to the notice given by the applicant himself, as distinct from that of the same date given by his migration adviser.  I am not, however, satisfied that the Tribunal did not have regard to the applicant’s wishes.  It may have done so.  As a matter of practice, in my view it is desirable for the Tribunal when provided with a response under s 426(3) to indicate in its reasons the consideration that it has given to the application or to the request.  No such indication is recorded in the Tribunal’s reasons in this matter.  It is, however, not a consequence of that that the Tribunal has failed to give consideration to that request.  In this matter I am not prepared to conclude that the Tribunal did fail to have regard to the applicant’s wishes to have Mr Mansourian give evidence on his behalf:  cp W82 v Minister for Immigration & Multicultural Affairs [2001] FCA 1373.  In that case, there were particular circumstances which lead French J to conclude that the Tribunal had failed to comply with the mandatory procedure requiring it to have regard to the applicant’s wishes about whether to call a witness that the applicant had requested be called to give oral evidence.

22                 In this matter, the Tribunal has carefully addressed the applicant’s claims to have converted to Christianity, and has given the applicant a full opportunity to explain its concerns about the timing of his interest in Christianity.  It received evidence from Father Monaghan.  I do not therefore infer that it did not have regard to the request to call Mr Mansourian to give evidence.  I do not therefore conclude that the Tribunal failed to comply with the procedure imposed upon it under s 426(3) of the Act to have regard to the applicant’s wishes that Mr Mansourian be called to give evidence at the hearing.  The fact that he is not called is not of itself evidence to support the inference that it did not give consideration to those wishes, as s 426(3) expressly provides that the Tribunal, having had regard to those wishes, is not required to hear evidence from such a person named in the notice.  There is an additional reason why, in this matter, I do not consider that that aspect, even if made out, would give rise to a reviewable ground in any event.  The applicant has submitted to the Court a statement from Mr Mansourian to which I have referred above.  It presumably reflects the evidence which the applicant wanted the Tribunal to procure from Mr   Mansourian.  It indicates that the applicant commenced the Bible study course on 22 May 2001, and that Mr Mansourian considers him to be a genuine Christian.  The date upon which the applicant commenced that Bible study course, bearing in mind that Mr Mansourian is apparently remote from Woomera and lives in New South Wales, indicates that the date is consistent with the Tribunal’s perception that the applicant’s active interest in Christianity became alive only after or at about the time of the first hearing on 6 March 2001.  Mr Mansourian would not demonstrate that the applicant had an active interest in Christianity well prior to that date.  Moreover, the Tribunal has now accepted that the applicant has become baptised into the Christian church, and in that sense is genuine.

23                 Accordingly, in my view, no error has been demonstrated in the Tribunal’s reasons which could give rise to a ground upon which the Court could exercise its jurisdiction under s 39B of the Judiciary Act.  No error of law is demonstrated, nor is there any error apparent in the way in which the Tribunal has applied the law to the facts.  There is no procedure prescribed by the Act which, in a relevant sense, the Tribunal has failed to comply with.  The Tribunal has not identified a wrong issue, or asked itself a wrong question.  It has not been shown to have ignored relevant material, or to have relied on irrelevant material in such a way as to affect its jurisdiction.  Consequently, in my view, it is not necessary to address the application of s 474 in the particular circumstances. 

24                 I consider that the application must be dismissed.  I so order.  I see no reason why the usual order as to costs should not apply.  I order that the applicant pay to the respondent costs of the application to be taxed.

Associate:

Dated:              8 March 2002