FEDERAL COURT OF AUSTRALIA

SAAQ v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 704

SAAQ v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.205 of 2001

MANSFIELD J

4 JUNE 2002

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

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

REASONS FOR JUDGMENT

1                     The applicant is a citizen of Iran.  He arrived in Australia on 18 April 2001.  On 31 July 2001 he applied for a protection visa under the Migration Act 1958 (Cth) (the Act).  That application was refused by a delegate of the respondent on 21 August 2001, and on review the Refugee Review Tribunal (the Tribunal) affirmed that decision on 10 October 2001.

2                     The applicant now seeks an order under s 39B of the Judiciary Act 1903 (Cth) declaring the decision of the Tribunal to be null and void. 

background and claims

3                     The applicant was born in Qom in Iran in December 1972.  He lived in Qom all his life, except for a period of about two and a half years when he completed an Associate Degree of Civil Engineering at the University of Tehran.  He served military service between 1994 and 1996.  He worked at the Qom Water Board for a period of several months between 1997 and 1998, and then worked as a chef in a family takeaway food business between 1999 and February 2001 when he left Iran.  He left Iran on a validly issued Iranian passport.

4                     The applicant claims to have left Iran because, although he was born and brought up as a Muslim, he could not live in an Islamic country where religion was used to persecute people.  He told the Tribunal that he had developed an interest in Christianity from exposure to a Christian friend during the course of his military service.  He had to repress the expression of his interest in Christianity after he left the army, but he had a little knowledge of Christianity.  His attempts to learn more about it were frustrated as Christians in Iran were not willing to proselytise.  He knew enough about Christianity to be able to make the sign of the cross, and he feared that he had been seen making the sign of the cross whilst working at the Water Board.  Although no action had been taken against him, he resigned from that employment through fear of exposure to interest as a Christian.  He also claimed that after he had resigned from the Water Board, unidentified authorities had begun investigating him.  He did not demonstrate his Christianity subsequent to that time until he left Iran in February 2001.  He also claimed before the Tribunal that he had now developed a significantly greater interest in Christianity, and proposed to be baptised.  He fears persecution by the Iranian authorities by virtue of his conversion to Christianity if he were to return to Iran.

5                     For the applicant to be eligible to be granted the visa, the delegate of the respondent, and on review, the Tribunal had to be satisfied that the criteria for the grant of the visa specified in the Act and the Regulations were met:  s 65(1) of the Act.  Relevantly for present purposes, s 36(2) of the Act provided the criterion that the decision maker is satisfied that the applicant is 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).  In practical terms, in the present matter, that required the decision maker be satisfied that the applicant is a refugee as defined in Article 1A(2) of the Convention, relevantly for present purposes that he has a well-founded fear of being persecuted for reasons of his religion, and that owing to such fear he is unable or unwilling to avail himself of the protection of Iran.

the tribunal’s reasons

6                     The Tribunal rejected the applicant’s claims.  It found his evidence was “internally inconsistent, confused and implausible”.  It noted that his claims had undergone considerable shifts from the time he was first interviewed upon his arrival in Australia.  It did not consider him to be a credible or reliable witness.

7                     Consequently, it did not accept that he had converted to Christianity.  It concluded:

“I am unable to be satisfied that the applicant left Iran in order to pursue an interest in Christianity.  I am not satisfied that the applicant had any interest whatsoever in Christianity while he was in Iran, or that he regarded himself as a Christian.  I do not accept that the applicant used to make the sign of the cross in the workplace, or that he was ever perceived to be a Christian or suspected of having converted to Christianity.”

8                     It gave reasons for that conclusion.  In his first interview when he had arrived in Australia, the applicant did not make any claim that he had fled Iran because of his interest in, or conversion to, Christianity.  He then made no claim to be a Christian.  His claimed interest in Christianity emerged later.  There was no suggestion that the record of interview was inaccurate, or that the applicant was unaware that he should then give his reasons for why he feared returning to Iran.  In fact, he said he had left Iran to pursue his interests in psychology and music.  At the hearing before the Tribunal, he gave “confused and implausible” explanations for why he had not referred to his Christianity at his arrival interview.  The Tribunal rejected those claims.

9                     The Tribunal also was not satisfied that the applicant, since his arrival in Australia, has genuinely converted to Christianity.  It accepted that he had made some effort to learn about Christianity, but the matters about his evidence leading to the rejection of his claim to have an interest in Christianity before he left Iran led the Tribunal to conclude that:

“His desire to learn about Christianity [in Australia] had more to do with a desire to enhance his claims to refugee status than it did with genuine Christian commitment.”

Consequently, the Tribunal did not consider that the applicant would make any attempt to practise Christianity if he were to return to Iran.  He had told the Tribunal that no-one in Iran was aware of his interest in Christianity.  Additionally, the Tribunal, on the basis of the information before it, took the view that if the applicant was a Christian and wished to practise his Christianity quietly and discreetly, he would be able to do so without any significant impediment.  It was not satisfied that he had any propensity, or commitment to proselytise.  Consequently, even if the applicant had converted to Christianity in Australia, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution if he were to return to Iran.

10                  Finally, the Tribunal referred to the applicant’s religious beliefs or lack of them.  Although it did not accept that he has converted to Christianity, it accepted that he does not believe in Islam.  There was no independent evidence before the Tribunal that would support a conclusion that an Iranian who does not believe in or practise Islam has a well-founded fear of persecution for that reason.  Such a claim was contrary to independent evidence before the Tribunal.  The Tribunal was therefore not satisfied that the applicant has a well-founded fear of persecution in Iran because he is not a believing Muslim and does not practise Islam.

the grounds of review

11                  The applicant raised four grounds of review which were said to involve jurisdictional error, and to entitle the applicant to an order under s 39B of the Judiciary Act notwithstanding s 474(1) of the Act.  Those grounds were:

·        jurisdictional error in failing to understand that the applicant’s fear could be well-founded even if the applicant was not personally endangered;

·        jurisdictional error in misconceiving the concept of “religion” as used in the Convention;

·        jurisdictional error in failing to receive evidence from a critical witness named by the applicant; and

·        actual bias, so as to lead to the conclusion that the Tribunal had not undertaken its review in good faith;  R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 per Dixon J at 617-618.

12                  In my judgment, the Tribunal did not err in its understanding of, or its application of, the test to determine whether the applicant has a well-founded fear of persecution for reasons of his religious beliefs.  In an unexceptionable way, it referred to the definition of “refugee” in Article 1A(2) of the Convention and to the High Court cases considering that definition.  It has identified the elements of that definition, including that the fear of persecution for a Convention reason must be “well-founded” as explained for instance in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379; Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559; and Minister for Immigration & Multicultural Affairs v Ibrahim (2000) 175 ALR 585.  It said:

“A person has a ‘well founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention stipulated reason.  A fear is well founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation.  A ‘real chance’ is one that is not remote or insubstantial or a far fetched possibility.  A person can have a well founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”

There is nothing in the Tribunal’s reasons when considering the particular claims of the applicant to indicate that it did not apply that test properly.  In doing so, it was appropriate for it to address the facts upon which the applicant’s claims were based, in particular as to what had occurred or what he had experienced in Iran prior to his departure from Iran:  see Guo at 574.  It made findings about those matters in terms adverse to the applicant.  It is not contended that its findings of themselves involved reviewable error on its part.  The Tribunal did not indicate that it was necessary for the applicant personally to have been exposed to persecution or to a significant risk of persecution in the past for it to be satisfied that he may have a well-founded fear of persecution at the time of its decision.

13                  The applicant’s counsel referred to W68/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 148.  I do not think that case advances the applicant’s contention.  The Tribunal’s error, in that case, was its failure to make an assessment of the risk of persecution facing the applicant in the future having regard to his claims of past experiences, even though the Tribunal was not persuaded that those past experiences had occurred.  In Raza v Minister for Immigration & Multicultural Affairs [2002] FCA 350, the Full Court (French, Merkel and Giles JJ) said at [18]:

“In substance the argument reduces to the proposition that the Tribunal failed to carry out the ‘what if I am wrong’ analysis required of it in determining whether the applicant fell within the Convention [see Guo at 575-576; Abebe v Commonwealth (1999) 197 CLR 510 at [83]].  The requirement for a ‘what if I am wrong’ analysis amounts to no more than the requirement that the Tribunal consider whether the appellant faces a real chance, or non-trivial probability, of persecution for a Convention reason if returned to the country of origin.  That assessment must be carried out even if the Tribunal is of the view, on the balance of probabilities, that an applicant for a protection visa will not face persecution for a Convention reason.  If, on the other hand, the Tribunal has concluded that there is no chance of probability of persecution such a conclusion excludes in the alternative hypothesis any alternative probability.  In that case the Tribunal is not required to assess fanciful possibilities.”

The decision in W68/01A is an illustration of circumstances where the Tribunal failed to address the question whether there was a well-founded fear of persecution in accordance with those considerations.  In this matter, the Tribunal evidences no doubt about its finding that the applicant did not hold, or express, Christian beliefs prior to his departure from Iran.  In those circumstances, it was not erroneous for it to consider his claims only upon the basis which it did.

14                  The second ground of review complains of the Tribunal approaching the identification of the applicant’s “religion” in a “rational, formulaic manner rather than properly assessing the faith of the applicant”.  The applicant made reference to the discussion by RD Nicholson J of the meaning of “religion” in W244/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 52 at [35-37].  In effect, as explained in the oral contentions, it is put that the Tribunal wrongly attributed to the applicant a conversion to Christianity whilst he was in Iran, so as to reject that claim, when in fact his claim was that he had only the gradual dawning of religious consciousness towards Christianity whilst he was in Iran and did not speak of conversion.  It was against that claim that, it is contended, the Tribunal should have assessed his claim.

15                  In the light of the references to the applicant’s claims as expressed, from time to time to the Tribunal, I do not accept that that error on the part of the Tribunal has been made out.  In a written document submitted to the Tribunal through his migration agent, the applicant positively rejected a suggestion that he was not a Christian convert by the time he was in Iran.  He asserted that he was.  One of the explanations which he proffered to the Tribunal about why he had not made a claim based upon his religious beliefs when first interviewed upon his arrival in Australia was because he had been told by others that he should not make a claim to have converted to Christianity, even though that was the truth, because of the way he would be dealt with in Australia. Moreover, it does not appear that the Tribunal misunderstood the nature of the applicant’s claims as necessarily involving conversion to Christianity before he left Iran.  In its conclusion in respect of that aspect of his claims, it expressly found that it was unable to be satisfied that the applicant left Iran in order to pursue an interest in Christianity, or that the applicant had any interest whatsoever in Christianity whilst he was in Iran, or that he regarded himself as a Christian.  The Tribunal clearly did not limit its consideration to the applicant’s claims on the basis that he had converted to Christianity in Iran and was exposed to the real risk of persecution upon his return to Iran by reason of his conversion at that time.  It separately addressed whether he had converted to Christianity whilst in Australia, and rejected that claim.  It also considered whether, if he had converted to Christianity in Australia, he would face a well-founded fear of persecution upon his return to Iran in any event.  I do not discern any error on the part of the Tribunal in its consideration of the applicant’s claims in the manner alleged.

16                  The third of the applicant’s contentions concerns the fact that Fr Jim Monaghan did not give evidence at the Tribunal hearing.  There is no direct evidence as to what he would have said.  It is claimed that the affidavit of Dr Anne Mary Higgins sworn on 23 May 2002 should indicate what Fr Monaghan would have said.  Dr Higgins is Chaplain to residents of the Woomera Immigration Reception and Processing Centre.  She says the applicant attended an inquiry session at the Centre on 26 June 2001, and thereafter attended Christian religious services and undertook Christian instruction and was baptised on 3 April 2002.  She appears to have no doubt about his genuineness.  As she worked jointly with Fr Monaghan, I accept that Fr Monaghan would have given evidence to that general effect had he attended the Tribunal hearing, even though it is not explained why an affidavit from him was not procured.

17                  However, I accept each of the submissions on behalf of the respondent as to why, in the circumstances, the Tribunal did not fall into any reviewable error by not itself calling Fr Monaghan.

18                  In the first place, it did not fail to comply with ss 425 and 426 of the Act.  It notified the applicant of the proposed hearing on 14 September 2001.  He was given the opportunity to attend the hearing.  He was also given the opportunity to notify the Tribunal if he wanted it to take oral evidence from any other person.  The applicant duly responded on 15 September 2001.  He did not indicate that he wanted the Tribunal to take evidence from any witnesses.  That box in the pro-forma reply document which he used was left blank.  He indicated in that form that he proposed to bring Fr Monaghan with him to the hearing.  There was no other communication which would enliven the Tribunal’s obligation under s 426(3) to consider whether to arrange Fr Monaghan to give evidence at the hearing.  The applicant’s migration agent on 18 September 2001 made a lengthy submission to the Tribunal.  It indicated that Fr Monaghan would attend the hearing as a witness for the applicant, but it did not request the Tribunal to arrange that.  Its terms indicate that the applicant or his migration agent had arranged for Fr Monaghan to attend the hearing.  In those circumstances, in my view, there is no relevant provision of the Act with which the Tribunal did not comply.

19                  In addition, as a matter of substance, the Tribunal did not fail to give the applicant the opportunity to have Fr Monaghan give evidence at the hearing.  This is not a case where the Tribunal failed to perform its duty to review the decision, by refusing to receive relevant and probative evidence:  cp W375/01A v Minister for Immigration & Multicultural Affairs  [2002] FCAFC 89.  The Tribunal expected Fr Monaghan to give evidence.  When it became clear that Fr Monaghan had not attended as expected to give evidence, although arrangements for him to do so appear to have been made by or on behalf of the applicant.  The Tribunal then invited the applicant’s migration adviser to provide a written statement from Fr Monaghan, and indicated that if it were then necessary he could also give oral evidence.  The time fixed for his statement to be provided was seven days.  No such statement was provided.  No request was made for further time to do so.  Accordingly, there was no occasion for the Tribunal to consider whether it should itself call Fr Monaghan to give evidence.

20                  Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at 576 pointed out that it is for the applicant to advance whatever evidence or argument the applicant wishes to advance in support of the claim to have a well-founded fear of persecution for a Convention reason.  It may be added that ss 425 and 426 give an applicant the additional avenue of having the Tribunal consider whether further particular evidence should be called.  In the present circumstances where the Tribunal fulfilled those obligations, and gave the applicant adequate opportunity to call such evidence as was required in support of the claims, I do not consider that the Tribunal failed to fulfil its review function under the Act.

21                  The contention that the Tribunal was biased can be shortly dealt with.  The existence of a mind firmly closed to consideration of the applicant’s claims according to law might be shown by reference to the Tribunal’s reasons, or to the course of the hearing, or to matters established external to the hearing, or to a combination of those things.  Here, the contention is based largely upon an observation of the Tribunal in the course of the hearing in the following terms:

“   I do know that a lot of young Iranian men your age leave Iran or make attempts to leave Iran.  And I know that the economic situation in Iran is very, very poor, and that there is a huge rate of unemployment amongst, particularly young people your age, including amongst people who have been to university.  So the fact that you have tried to leave Iran previously, it certainly does not, would not persuade me that the reason you left, tried to leave Iran before, was to practise religious beliefs.”

Counsel for the applicant submitted that such an observation, in conjunction with its reasoning as a whole, demonstrated a mind closed to consideration of the applicant’s claims.

22                  I do not consider that the Tribunal’s reasons, or its conduct of the hearing including what it said in the passage quoted indicate that it had a mind closed to reviewing the applicant’s claim on its merits.  The particular passage reflects an awareness on the part of the Tribunal of the state of affairs in Iran.  It is inevitable that the Tribunal will develop knowledge of the state of affairs in particular countries by reason of its functions.  The Tribunal will no doubt develop a degree of expertise about such matters.  It is not biased simply because it brings that knowledge to bear in considering particular applications for protection visas under the Act.  Its particular comment does not suggest it would not consider the applicant’s claim on its merits.  It is simply to indicate that, by reason of its general knowledge, a particular fact - that the applicant had previously tried to leave Iran – would not of itself persuade the Tribunal that he had done so to be free to practise his religious beliefs.  There are other reasons why persons of the applicant’s age might wish to leave Iran.  It then addressed the particular reasons put forward by the applicant.  It rejected them not because of a view that all young men leaving Iran do so for economic reasons but in the light of the applicant’s particular claims as expressed from time to time and how he responded to questions at the hearing.

23                  The course of the hearing, including the nature of the Tribunal’s questioning of the applicant, and the reasons it gave for rejecting his claims demonstrate that it gave careful consideration to his claims.  In my view, its rejection of them did not result from it having a mind closed to an independent consideration of his claims to have a well-founded fear of persecution by reason of his religious beliefs.

24                  Accordingly, I am not persuaded that the Tribunal erred in any way which might enliven the Court’s powers to make an order under s 39B of the Judiciary Act.  It is not necessary, therefore, to consider the impact of s 474(1) of the Act.

25                  In my judgment the application should be dismissed.  I so order.

Associate:

Dated:              3 June 2002