FEDERAL COURT OF AUSTRALIA

SAAS v Minister for Immigration & Multicultural Affairs

[2002] FCA 726

MIGRATION – application for protection visa – review of decision of Refugee Review Tribunal – whether Tribunal erred in assessment of applicant’s claim to be a refugee sur place – validity of s 91R(3) of the Migration Act 1958 (Cth).

CONSTITUTIONAL LAW – validity of s 91R(3) of the Migration Act 1958 (Cth) – characterisation of provisions relating to the grant of protection visas - scope of Commonwealth legislative power to enact laws with respect to external affairs, immigration and aliens – whether provisions supported by only one possible head of Commonwealth legislative power – dual characterisation.

Australian Constitution, ss 51(xix), 51(xxvii), 51(xxix)

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), ss 5, 14, 30, 31, 36(2), 48A, 91A – 91X, 91R(1), 91R(2), 91R(3), 91S, 91T, 91U, 424A, 474, 475A

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

Migration Regulations, reg 866.222A – 866.225

Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 – referred to

Commonwealth v Tasmania (1983) 158 CLR 1 – referred to

Cunliffe v Commonwealth (1994) 124 ALR 120 – referred to

Ex parte De Braic (1974) 124 CLR 162 – referred to

Horta v Commonwealth (1994) 181 CRL 183 – referred to

Kartinyeri v Commonwealth (1998) 195 CLR 337 – referred to

Lim v Minister for Immigration (1992) 176 CLR 1 – cited

Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 – referred to

Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 – referred to

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 – referred to

Minister for Immigration and Multicultural Affairs v Farahanipour (2001) 181 ALR 535 – referred to

Minister for Immigration and Multicultural Affairs v Mohammed (2000) 98 FCR 405 – cited

O’Keefe v Calwell (1949) 77 CLR 261 – cited

Polites v Commonwealth (1945) 70 CLR 60 – referred to

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 – referred to

R v Macfarlane; Ex parte O’Flanagan (1923) 32 CLR 518 – referred to

R v Patterson; Ex parte Taylor (2001) 182 ALR 657 – discussed

Re F; Ex parte F (1986) 161 CLR 376 – applied

The Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 – applied

Victoria v Commonwealth (1996) 187 CLR 416 – referred to

SAAS v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S.207 of 2001

MANSFIELD J

11 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

INTRODUCTION

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (the Tribunal) which affirmed a decision of a delegate of the respondent not to grant a protection visa to the applicant.

2                     The applicant is a citizen of Iran.  He arrived in Australia on 3 January 2001 and on 31 July 2001 he lodged an application for the visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) (the Act).  That application was refused by the respondent’s delegate on 20 August 2001.  The Tribunal affirmed the delegate’s decision on 29 October 2001.

3                     As the application for review of the Tribunal’s decision was filed with the Court on 15 November 2001, it was made after the Act was amended by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (the amending Act), which came into force on 2 October 2001. The amending Act affected the application for review in three important respects.  Firstly, the application for review could only be made under s 39B of the Judiciary Act: see s 475A of the Act.  Secondly, as the decision of the Tribunal is a privative clause decision as defined in s 474(2) of the Act, the grounds for review were therefore limited to those espoused by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616, subject to issues concerning the primacy of s 474(1) over procedural obligations of the Tribunal imposed by the Act or at common law.  Thirdly, the amending Act introduced a new s 91R into the Act.  That section purports to modify the criteria by which the applicant’s application for a protection visa must be assessed.

THE ISSUES

4                     In order for the applicant to be granted the visa, it was necessary for the Minister’s delegate and, on review, the Tribunal to be satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention): s 36(2) of the Act.  It was therefore necessary for the Tribunal to be satisfied that the applicant is a refugee, as that term is defined in Article 1A(2) of the Convention, namely, a person who:

“Owing to 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.”

5                     Prior to the insertion of s 91R into the Act is was accepted by this Court that that definition was sufficiently broad to allow an applicant to satisfy the definition on the basis of conduct occurring while the applicant is outside his country of origin: Minister for Immigration & Multicultural Affairs v Mohammed (2000) 98 FCR 405.  Such claimants are known as refugees sur place. The applicant claims to be a refugee sur place by reason of his conversion to Christianity since departing from Iran.  He claimed to the Tribunal and to the Court through his legal representatives to have a well-founded fear of persecution by reason of his religion should he return to his country of nationality.

6                     It is s 91R(3) which was the subject of submissions on this application.  Section 91R(3) relevantly provides:

“For the purposes of the application of this Act and the regulations to a particular person:

(a)               in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;

disregard any conduct engaged in by the person in Australia unless:

(b)        the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.

7                     The applicant claims that that provision is not supported by a head of Commonwealth legislative power and is accordingly invalid or, alternately, that the Tribunal erred in the manner in which it applied the provision to him.

8                     Those contentions will be assessed against the background of the applicant’s claims and the Tribunal’s reasons for refusing to grant the applicant a protection visa under the Act.

The applicant’s claims

9                     On his arrival in Australia, the applicant was interviewed by an officer of the Department of Immigration and Multicultural Affairs.  He stated to the officer that he had lived for the past five years in Isfahan, Iran, where he worked for a steel conglomerate.  He claimed to be a Shiite Moslem.  He claimed that he left Iran on 5 December 2000, using a genuine passport issued to him in his own name.  When asked why he had left Iran, the applicant responded that he had been forced to leave by a combination of problems relating to social and political unrest in the country, including the lack of safety, drug and prostitution problems, religious prejudices and lack of freedom. 

10                  In his application for a visa lodged with the Department of Immigration and Multicultural Affairs, the applicant stated that he is a Christian and “former Moslem”.  In a written statement that accompanied the application, he claimed to have lost interest in Islam after observing human rights abuses under the Islamic Republic, including the persecution of civilians for their religious beliefs and the imposition of “barbaric rules of Islam”.

11                  The applicant claimed that in 1999 he became acquainted with a Christian man named Vacheh, and that through his association with Vacheh he had become “very impressed with the atmosphere” of the Christian church and had become convinced that Christianity was the answer to his search for a reliable religion.  In the same year, the applicant claims to have rented a coffee shop in a Christian health club.  He claims the shop was raided by members of the Hefazat Etelaat who detained him for two days, during which time he was physically and verbally abused. 

12                  Soon after the raid, the applicant established a Christian study group with people named Majeed and Faramarz who were in the process of converting to Christianity.  The applicant claims that the group read and distributed Christian publications and booklets.  On 2 December 2000 the applicant received a call from the mother of Faramarz stating that Faramarz had been arrested and Christian publications confiscated from him.   The applicant claimed that he had to leave Iran to save his life.  He left the country on 5 December 2000.  The applicant’s written statement went on to say:

“Knowing the nature of the Islamic Republic, I believe that by torturing Faramarz, they had obtained all the information about our group and undoubtedly will arrest and persecute the rest of our group including myself. Through the eyes of the Islamic republic I not only abandoned Islam, but also participated in proselytising activities.  As they have no respect for people’s privacy in life and religion, I have no doubt if they get their hands on me they will make me to abandon my Christian faith and if I was not prepared to do so, I will be persecuted … I have found my courage and regardless of any consequences, I will proudly announce my Christian faith even if I am forced to return to Iran.”

13                  Those claims were repeated in a written submission to the Tribunal dated 2 October 2001 in which the applicant’s representative stated that the applicant’s Christian belief had continued to grow and that he had become involved in evangelising activities.  The statement requested that the Tribunal assess the claim “at this point of time rather than at the time of the applicant’s departure from Iran.  The applicant now has gained his confidence not to disguise his Christian faith regardless of any danger or threat he is confronted with”.

14                  The applicant provided the Tribunal with further documentary material to support his claim to have converted to Christianity, including a certificate stating that he had completed a “Bible in Outline” correspondence course, and a letter from the parish priest at the Woomera-Roxby Downs Catholic Parish, Father Jim Monaghan, who states that he supports the applicant’s claims to be a Christian and to live out his religious convictions in a public way.

15                  At his hearing before the Tribunal the applicant was asked why he had not raised his claim to fear persecution by reason of his Christian beliefs at the time of his arrival interview.  He responded that he had not done so because he was fearful, and that he had attempted “numerous times” to seek a further interview to make further claims but that those requests had been denied for some time.  He repeated his claim that his interest in Christianity had developed while he owned and operated a coffee shop in a Christian health club in 1999 and that after about 5 months of working at the club the shop was raided by the authorities who emptied drinks down the sink alleging they were alcoholic.  He said he was questioned about another club worker who the authorities suspected of proselytising at the club, but was not himself charged with any offences.  He claims that he did not return to the club after that incident because he was forced to give an undertaking that he would not return there.

16                  When questioned about his claim to have proselytised at his work place with the steel conglomerate, the applicant told the Tribunal that he discreetly handed out pamphlets to a close circle of friends who had also expressed their disgust at Islam.

17                  The Tribunal heard evidence from Sister Anne Higgins who claimed that the applicant had shown leadership in the detention centre church and had regularly attended services at the centre and sought extra information.  She told the Tribunal that she believed the applicant was sincere in his conversion to Christianity and that he would not disown his religion or live out his faith privately.

18                  Pursuant to s 424A of the Act, the Tribunal wrote to the applicant on 23 October 2001, drawing his attention to the inconsistency between the information that he provided at his arrivals interview and the claims he later made in his application for a protection visa and later at the Tribunal hearing.  The letter informed the applicant that the inconsistencies might cause the Tribunal to make adverse findings as to the applicant’s credibility and invited him to comment.  That letter was responded to by the applicant’s adviser and also by Sister Anne Higgins who repeated her claim that the applicant was genuine in his conversion to Christianity and noted that he had been baptised on 23 October 2001.

THE TRIBUNAL’S REASONS

19                  The Tribunal rejected the applicant’s claim to have developed an interest in Christianity prior to his departure from Iran.  That finding was based on the inconsistency between the information provided by the applicant at his arrival interview, and the claims later made by the applicant in his visa application and in his evidence before the Tribunal.  In particular, the Tribunal noted that the applicant had failed to mention anything during his arrival interview that would suggest that he had an interest in Christianity or that he had ever worked in a Christian health club or experienced difficulties with the authorities for having worked there.   He had not claimed during that interview that he had been detained or questioned for associating with Christians while in Iran, except to report in a very general way that about the existence of religious prejudices in his country.  The Tribunal held that that general dissatisfaction with the Islamic Republic in Iran did not amount to a claim that the applicant himself feared persecution by reason of his religion.

20                  The Tribunal was not satisfied that the applicant’s conversion to Christianity in the months following his arrival in Australia was genuine.  It noted that when the applicant first approached Sister Higgins and Father Monaghan he did so in a group of asylum seekers who together inquired about conversion.  That fact led the Tribunal to the conclusion that the applicant’s claims to have converted to Christianity had been created for the purpose of bolstering his claims for refugee status in Australia and were not genuine.  That finding was expressed in the following passage:

“The fact that the applicant approached Sister Higgins and Father Monaghan in a group suggests to the Tribunal that his decision to convert was not an individual decision based on personal experiences but was rather the result of discussions among the detainees about their claims, resulting in the group deciding to approach Sister Higgins and Father Monaghan about converting.  The fact that the applicant was persistent enough to continue his line of inquiry and that he was earnest in his study of Christianity does not satisfy the Tribunal of the genuineness of his inquiry, but merely of his determination to stay in Australia.”

21                  The Tribunal rejected the applicant’s claims to have worked as a Moslem in an Armenian Christian club whilst in Iran for two reasons.  First, it gave weight to the fact that in his arrival interview the applicant had not mentioned that he had worked there.  Second, it considered ‘implausible’ the claim that Armenian Christians had allowed the applicant, a Moslem, to own and operate part of their sporting club as independent country information suggested that Armenian Christians “do no proselytise and have a policy of turning away any Moslem who expresses an interest in Christianity”.  That information also led the Tribunal to reject the applicant’s claims that a man named Vacheh had encouraged the applicant in his interest in Christianity and assisted him to establish a Christian study group.

22                  Having made those findings, the Tribunal applied s 91R(3) of the Act to the applicant’s claims in a passage that the applicant contends discloses a reviewable error on the part of the Tribunal to the extent that the Tribunal disregarded any genuine affinity with the Catholic faith which the applicant developed as a result of his continued contact with church workers at the detention centre.  That contention is considered later in these reasons.

23                  Having found that the sole purpose of the applicant’s purported conversion to Christianity was the strengthening of his claim to be a sur place refugee in Australia, the Tribunal turned to consider what the applicant’s likely behaviour would be should he be returned to Iran.  After considering the applicant’s oral and written evidence, and the evidence of Sister Higgins as to the applicant’s propensity to proselytise, it found that the applicant would not proselytise if returned to his country.   That finding was expressed in the following terms:

“The Tribunal knows through experience that there is much discussion among detainees about their various refugee claims.  It appears to be well known that Iranian applicants who have in the past satisfied the Tribunal that they are likely to proselytise Christianity upon their return to Iran have been granted refugee status in Australia.  From the applicant’s account of his proselytising activities in the detention centre, coupled with Sister Higgins’ advice that Catholicism is not a proselytising religion, the Tribunal finds that the applicant has claimed to have a propensity to proselytise, indeed has engaged in proselytising activities in the detention centre, for the sole purpose of bolstering his refugee claims.  The Tribunal is not satisfied that the applicant would proselytise Christianity should he return to Iran.”

24                  The Tribunal went on to assess the question of whether the applicant had an objectively well-founded fear of persecution in Iran by reason of his religion on the basis of its finding that the applicant would be returned to Iran as a “non-proselytising Catholic convert”.  It relied on independent country information which suggested that converts to Christianity would not generally attract the attention of authorities and/or be subject to persecution by reason of their conversion.  It found that:

“Only high profile cases of conversion in Iran would cause concern.  The Tribunal is not satisfied that the applicant falls into any category which is likely to come to the attention of the authorities.  The Tribunal is prepared to accept at most (very generously) that, if the applicant did continue to pursue Catholicism in Iran (which the Tribunal very much doubts), the applicant would merely attend services and participate in quiet worship in Iran.  The Tribunal is not satisfied that he would proselytise or otherwise engage in any activity which would draw attention to his conversion.”

25                  The Tribunal went on to find that if the applicant were subject to “low-level” discrimination on account of his conversion to Christianity if returned to Iran, such discrimination would not amount to persecution as that term is defined in s 91R(2) of the Act.  In addition, it considered whether as a failed asylum-seeker in Australia the applicant would face difficulties upon his return to Iran for reasons of his having applied for refugee status here.  It rejected that possibility on the basis of independent country information that suggested that Iranian authorities are “scarcely interested in the phenomenon of asylum seekers who have exhausted all other legal avenues.”

26                  Accordingly, the Tribunal was not satisfied that the applicant has a well-founded fear of persecution in Iran within the meaning of the Convention and therefore found that he was not a refugee.  It followed that he was not a person to whom Australia has protection obligations under the Convention and as the applicant did not satisfy the criteria set out in s 36(2) of the Act the Tribunal affirmed the decision not to grant the applicant a protection visa.

CONSIDERATION OF THE GROUNDS OF REVIEW

27                  There are two aspects to the application for review of the Tribunal’s decision.  The first is the contention that s 91R(3) of the Act is invalid for want of Commonwealth legislative power and that accordingly the application for a protection visa should not have been assessed against that provision.  Alternately, it is claimed that if the provision is validly enacted, s 91R(3) was nevertheless wrongly applied to the applicant’s specific claims.  It is convenient to consider firstly the applicant’s claim that s 91R(3) of the Act is invalid.

A. The validity of s 91R(3) of the Act

28                  At the time that the applicant applied for a protection visa, s 36(2) of the Act set out a criterion which had to be met if the application was to be successful:  s 65(1) of the Act.  Section 36(2) is relevantly in the following terms:

“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.”

29                  The Refugees Convention and Refugees Protocol are defined respectively under s 5 of the Act as the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, and the Protocol relating to the Status of Refugees done at New York on 31 January 1967.  The effect of s 36(2) is to require that an asylum-seeker’s application for a protection visa is determined by reference to the definition of ‘refugee’ contained in Article 1A(2) of the Convention, as set out above at par [4] of these reasons.

30                  It was submitted by counsel for the applicant that the “Commonwealth, having ratified the Convention in a manner which did not contain any reservations with respect to Article 1A ... has chosen to implement it’s [sic] obligations under international law by specific incorporation of the Convention.  In doing so it has … enlivened its powers pursuant to the ‘External affairs’ head of power under s 51(xxix) of the Constitution”.  Presumably by that submission it is meant that the Convention was ratified by the Commonwealth Executive, and by enacting the Act in a manner incorporating in s 36(2) a definition in the Convention, the Legislature exercised its power under s 51(xxix) of the Constitution.  That submission does not expressly go so far as to assert that the Commonwealth Parliament “chose” the external affairs power as the source of power for the enactment of the protection visa provisions of the Act.  Nonetheless, it is submitted that it is as a consequence of the Legislature’s “choice” to implement its obligations under the Convention by incorporation of certain provisions in the Convention, particularly in s 36(2) of the Act, that the only source of power for so doing is the external affairs power – that power being said to be the sole power in the exercise of which the Commonwealth may incorporate the terms of a Convention into domestic law by specific reference.  It followed, according to the applicant, that the protection visa provisions of the Act have the sole character laws with respect to that limited aspect of external affairs pertaining to the implementation of international obligations into domestic law.  As a consequence, the argument runs, the Act could not be properly characterised as a law with respect to any alternative head of power, such as the power to enact laws with respect to naturalisation and aliens pursuant to s 51(xix) or with respect to immigration pursuant to s 51(xxvii) of the Constitution.  It is also argued that neither of those heads of power can support those provisions in any event.  The final step in the argument is that s 91R(3) of the Act is in fact not a valid exercise of the external affairs power under s 51(xxix) of the Constitution, the only source of power available to support a provision dealing with protection visas for refugees as defined in the Convention.

31                  The external affairs power supports the enactment into domestic law of legislation the object of which is to implement Australia’s obligations under a Convention or other form of international agreement, notwithstanding that the subject matter that the Convention bears upon would not otherwise be sufficiently connected to any other head of legislative power enumerated in s 51 of the Constitution; Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dams); Victoria v Commonwealth (1996) 187 CLR 416.  For a law properly to be characterised as a law with respect to the aspect of the external affairs power that supports the incorporation into domestic law of Australia’s obligations under an international agreement, there must exist reasonable proportionality between the law and the purpose of discharging the obligation under the Convention:  Tasmanian Dams  at 130-131, 172, 232, 259-60; Victoria v Commonwealth at 486-489, 508-509.

32                  In the present case, the applicant submitted that s 91R(3) of the Act can not properly be characterised as a law with respect to external affairs because it departs from, and is therefore inconsistent with, the definition of “refugee” set out in Article 1A(2) of the Convention.  That disproportionality is said to arise from the fact that, on its face, s 91R(3) alters and restricts the Convention definition of “refugee” by excluding from consideration certain conduct that might otherwise lead to a finding that a particular applicant satisfies the Convention definition of “refugee”.  In Minister for Immigration & Multicultural Affairs v Mohammed (2000) 98 FCR 405, a case decided before the enactment of s 91R(3), that definition was considered wide enough to allow claims for refugee status which derive from events occurring while the claimant is outside his or her country of origin.  In that case, French J said at 412:

"Persons making claims based on such events, designated generally as 'refugees sur place', may seek protection based upon post-departure change of circumstances or dramatic intensification of existing conditions in the country of origin or because of the consequences of their own activities while abroad … Articles 1A, 1F and 33 are silent on whether a person's entitlement to protection as a refugee surplace because of activities abroad is conditioned by a requirement that they be engaged in good faith and not for the purpose of generating the very conditions which would otherwise give rise to the entitlement.”

33                  His Honour concluded at 421:

“The imposition of a good faith qualification for refugees sur place  as a gloss upon the Convention is not warranted by its language and is capable of eroding, in its practical application, the protection that the Convention provides."

See also Minister for Immigration and Multicultural Affairs v Farahanipour (2001) 181 ALR 535 per Ryan J at 542 [19-21] and per Nicholson J at [81-86].

34                  In light of those decisions, the applicant contended that s 91R(3), as it effectively alters the Convention definition of “refugee”, by excluding conduct which might establish that the visa applicant is a refugee sur place unless it is proved to the satisfaction of the Minister the conduct was engaged in in good faith, does not serve the purpose of discharging Australia’s obligations under the Convention, and is therefore not supported by the external affairs power.  The proposition that the Act, at least to the extent that it provides for the granting of protection visas, is prima facie a law bearing the sole character of a law with respect to external affairs is therefore critical to the applicant’s assertion that s 91R(3) of the Act is invalid.  It will only be necessary to address the contention that the provision is inconsistent with the Convention if the applicant is correct in his contention that the external affairs power is the sole power supporting the protection visa provisions of the Act.

35                  In my judgment, the submission that the provisions of the Act and regulations setting out the criteria for the granting of a protection visa bear the sole character of laws with respect to external affairs must fail.

Dual characterisation

36                  The principles by which the Court is to determine whether a law is with respect to a particular head of legislative power are well settled and were recently expressed by Gleeson CJ, Gaudron , McHugh, Gummow, Hayne and Callinan JJ in The Grain Pool of Western Australia v The Commonwealth (2000) 202 CLR 479 at 492 (Cultivaust) to include the following:

“First, the constitutional text is to be construed ‘with all the generality which the words used admit’ … Secondly, the character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates.  Thirdly the practical as well as the legal operation of the law must be examined to determine if there is a sufficient connection between the law and the head of power…”

37                  Their Honours at 492 referred also to a fourth principle which in my view is critical to the present application, taken from the judgment of Mason and Deane JJ in Re F; Ex parte F (1986) 161 CLR 376 at 387-388.  Mason and Deane JJ said:

“…a single law can possess more than one character in the sense that it can properly be characterised as a law with respect to more than one subject-matter.  It suffices for constitutional validity if any one or more of those characters is within a head of Commonwealth legislative power.  In determining validity, it is not necessary to single out the paramount character.  It is enough that the law ‘fairly answers the description of a law “with respect to” one given subject matter appearing in s 51’ regardless of whether it is, at the same time, more obviously or equally a law with respect to some other subject matter … In a case where a law fairly answers the description of being a law with respect to two subject matters, one of which is and the other of which is not a subject-matter appearing in s 51, it will be valid notwithstanding that there is no independent connection between the two subject-matters.”

See also Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 192-3 and Melbourne Corporation v The Commonwealth (1947) 74 CLR 31 at 79.

38                  If s 91R(3) as part of the provisions dealing with protection visas in the Act can be properly characterised as a law with respect to a head of power other than the external affairs power, it will be unnecessary to decide whether the provision would also be sustained by any aspect of the external affairs power, it being sufficient for validity that the law is referable to only one head of legislative power.  That approach was adopted by the High Court in Cultivaust  at 490 and, in particular by Kirby J at 517 in the consideration of the validity of a statute that purported to be supported by both the power to enact laws with respect to external affairs, and the power to enact laws with respect to patents of inventions and designs.  Kirby J said at 517:

"If the validity of the federal laws, propounded by reference to the patents power, were upheld the demonstration of any alternative or additional sources of validity would be unnecessary: Re F; Ex parte F (1986) 161 CLR 376 at 388 … it would suffice for the Commonwealth … to support the federal laws by reference to the patents power alone.  This would leave the question of the ambit of the external affairs power in respect of the subject matter of an international treaty to be elucidated in a future case where such elucidation was essential.”

39                  The applicant's submission that the effect of the legislature’s “choice” to implement the Convention into domestic law by specific reference to its Articles, relevantly Article 1A(2), was that the sole power of the law was the external affairs power in my judgment evidences an erroneous approach to the characterisation of the laws of the Commonwealth Parliament.

40                  First, it implicitly proceeds upon the basis that the Legislature has chosen the external affairs power as the sole legislative source of power for the protection visa provisions of the Act.  The foundation for that premise is that s 36(2) expresses as one of the criteria for the grant of a protection visa the satisfaction of the respondent that Australia has protection obligations under the Convention to the visa applicant.  However, it does not follow from the terms of s 36(2) that the Legislature has designated the external affairs power as the sole source of its legislative power to enact those parts of the Act and Regulations concerning protection visas.  It is expressed to be “An Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons”.  That engages, at least, s 51(xix) of the Constitution.  Section 36(2) is in Part 2 of the Act, dealing with the control of arrival and presence of non-citizens.  A person who applies for a protection visa, having arrived in Australia without a visa, is an unlawful non-citizen:  s 14, at least until that person is granted some form of visa under the Act.  Division 3 of Part 2 of the Act deals with visas for non-citizens.  Sections 30 and 31 provide for kinds of visas and classes of visas as prescribed and as specified in ss 32-38, including the prescription of criteria for classes of visas.  Section 36(1) creates a class of visa known as protection visas.  There are controls upon repeat applications for visas including protection visas:  s 48A, and upon what material may be considered in the case of further applications for protection visas:  s 50.  Subdivisions AI to AL (ss 91A-91X) all deal with matters concerning eligibility for protection visas.  Subdivision AL includes provisions which restrict the application of Art 1A(2) of the Convention to persecution which has a particular defined connection to a Convention reason and is of a particular character:  ss 91R(1) and (2).  It limits the expression “membership of a particular social group” and defines for the purposes of the application of the Act the expressions “non-political crime” and “particularly serious crime” in Arts 1F and 33(2) of the Convention in a way different from the way those expressions are used in the Convention:  see ss 91S, 91T and 91U respectively.  As contemplated by s 31, the Regulations prescribe criteria for the grant of protection visas beyond the terms of the Convention, including criteria concerned with conduct whilst in Australia, health and certain public interest criteria:  reg 866.222A – 866.225.

41                  The context in which s 36(2) appears in the Act, and the provisions referred to in the Act and the Regulations, do not evidence the intention on the part of the Legislature only to rely upon the external affairs power to support the protection visa provisions of the Act and the regulations.  Whilst it is clear that the Legislature has sought to give effect to the obligations the Executive assumed as a matter of international law by ratifying the Convention, it is equally clear that it has not done so solely by adopting the Convention into domestic law in its entirety and unchanged.  It is, as the Act demonstrates, controlling the arrival and presence of non-citizens in Australia.

42                  More importantly, that Parliament might seek to engage a particular source of legislative power by the incorporation of the terms of a Convention into domestic law, is not conclusive of whether the law is in fact a law with respect to that source of power.   As Cultivaust shows, the characterisation of a law should be determined by reference to the rights, powers, liabilities, duties and privileges it creates, as well as by an examination of the legal and practical effect of the law.  See also Cunliffe v Commonwealth (1994) 124 ALR 120 at 129.

43                  In addition, the applicant’s proposition has the effect of limiting the power of the Legislature to subsequently enact legislation that is inconsistent with the Convention where such legislation would otherwise be within the legislative power of the Commonwealth and would otherwise be valid.  Such an approach would render the powers enumerated in s 51 mutually exclusive, or at the very least suggest that the exercise of power to enact law with respect to one subject matter may limit the power to enact law with respect to another.  The error inherent in that contention is clear from Re F; Ex parte F (1986) 161 CLR 376 at 387 and Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 at 191.

Characterisation of s 91R(3) and sufficient connection with alternative heads of power

44                  Section 91R(3) operates to limit the circumstances in which the respondent may be satisfied that an applicant satisfies the criteria for the grant of a visa where a sur place claim is made.  It does so by excluding from the respondent’s consideration of the criterion expressed in s 36(2) of the Act and cl 866.221 of Sch 2 of the Regulations any conduct engaged in by the applicant that is engaged in for the purpose of strengthening the applicant’s claim to be a refugee, and by placing the onus on the applicant to satisfy the respondent that such conduct was not engaged in for that purpose.  The provision therefore operates to define the circumstances under which certain non-citizens should be granted a protection visa so as to be entitled to remain in Australia upon the conditions of the visa.  Such a provision, in my judgment, has a sufficient connection with both the subject matters of “aliens” and “immigration” such as to be supported by either s 51(xix) or s 51(xxvii) of the Constitution. 

45                  The scope of the Commonwealth Parliament's power to enact laws with respect to aliens under s 51(xix) of the Constitution was considered by the High Court in  Lim v Minister for Immigration (1992) 176 CLR 1 at 25-26 per Brennan, Deane and Dawson JJ:

"The legislative power conferred by s 51(xix) with respect to 'aliens' is expressed in unqualified terms.  It prima facie encompasses the enactment of law with respect to  non-citizens generally.  It also prima facie encompasses the enactment of a law with respect to a particular category or class of non-citizens, such as non-citizens who are illegal entrants or non-citizens who are in Australia with having presented a visa or obtained an entry permit.  Such a law may, without trespassing beyond the reach of the legislative power conferred by s 51(xix), either exclude the entry of non-citizens or a particular class of non-citizens into Australia or prescribe conditions upon which they may be permitted to enter and remain; and it may also provide for their expulsion or deportation".

46                  That passage should now be read in light of the recent decision of the High Court in R v Patterson; Ex parte Taylor (2001) 182 ALR 657 (Patterson) in which the majority Judges found that a non-citizen who had been absorbed into the Australian community (in that case a British subject resident in Australia for 25 years) was not an alien for the purposes of s 51(xix) of the Constitution: see per Gaudron J at 669-671, McHugh J at 683-690, Kirby J at 721-738 and Callinan J at 753-756.  The effect of Patterson is that the status of “alien” in a person is to be determined by the extent to which that person has become integrated as a member of the Australian community, and not exclusively by his or her non-citizenship.  As such, the aliens power may not, as stated in Lim, encompass the enactment of laws with respect to all non-citizens generally.  That qualification is not relevant in the present case. Nothing in Patterson suggests that the aliens power does not support the enactment of legislation prescribing the conditions upon which a non-citizen, not yet a member of the Australian community, should be permitted to enter or stay in Australia.  Section 91R(3) is such a provision. 

47                  It is not to the point that the head of power under s 51(xix) of the Constitution might not entitle the Commonwealth to enact legislation which in terms adopts the Convention.  It is not necessary to decide that question.  Section 51(xix) does entitle the Commonwealth to enact legislation which determines whether non-citizens without visas may arrive and remain in Australia.  The legislative device used in s 36(2) of prescribing a criterion for the grant of a protection visa by reference to the Convention is no more than that.  Senior counsel for the applicant acknowledged that s 36(2) of the Act would be within s 51(xix) of the Constitution if it set out precisely the words of Art 1A(2) of the Convention without expressly referring to the Convention.  The means by which that criterion is expressed is a matter for the Legislature.  The use of a “referential definition” (see Bennion, The Interpretation of Statutes, Sweet & Maxwell, 3^ed, p 400-401) would, in my view, be equally within power.  Indeed, if the Legislature chooses to specify a criterion for a grant of a visa by reference to some other instrument, that instrument need not be a convention ratified by the Executive.

48                  The Legislature is also entitled to prescribe criteria for the grant of a visa of the class which it calls a protection visa:  s 36(1) different from, or complementary to, the terms of the Convention.  The ratification of the Convention by the Executive cannot circumscribe or limit the legislative power of the Commonwealth under s 51(xix) or generally under the Constitution.  See e.g. per Latham CJ in Polites v Commonwealth (1945) 70 CLR 60 at 69;  Horta v Commonwealth (1994) 181 CLR 183; and per Gummow J in Kartinyeri v Commonwealth (1998) 195 CLR 337 at 383-386.  Section 36(2) should be, and has been, interpreted as far as its language permits consistently with the international obligations assumed by satisfaction of the Convention:  Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 at 287 per Mason CJ and Deane J.  But that principle does not circumscribe the legislative powers in s 51 of the Constitution.  The criteria for the grant of a protection visa in the Regulations are, in my view, within power notwithstanding that they do not find expression in the Convention.  To the extent to which s 91R(3) qualifies or restricts the criterion for the grant of a protection visa as expressed in s 36(2), in my view, it operates as a matter of domestic law to that extent.  It is a provision which applies to a particular class of non-citizens, namely those who are in Australia who claim to be entitled to a protection visa. It operates to prescribe, in part, the conditions upon which a decision is to be made on whether a particular person has satisfied the criteria for the grant of a protection visa.  It therefore has a relevant and sufficient connection with the subject matter of “aliens” in s 51(xix) of the Constitution.  Accordingly, in my judgment, to the extent that it applies to the applicant in the present case, the provision is supported by the aliens power enumerated in s 51(xix) of the Constitution and is therefore valid.

49                  The scope of the power to enact laws with respect to immigration enumerated in s 51(xxvii) of the Constitution also supports the enactment of s 91R(3). The immigration power has been determined by the High Court to support legislation prescribing the conditions under which a person seeking to immigrate to Australia may be permitted (by the mechanism of a visa) to enter, temporarily reside, or permanently reside in the country.   The scope of the immigration power was summarised by Dixon J in O'Keefe v Calwell (1949) 77 CLR 261 at 288:

"…it seems impossible to do other than treat the power over immigration as relating to all movement of strangers into the Commonwealth independently of the intention of the persons who enter.  So long as the new arrival is a stranger and not one of the people of Australia the legislature may deal with the question whether he enters and on what terms he enters or remains."

See also Ex parte De Braic (1974) 124 CLR 162 at 164 per Barwick CJ and R v Macfarlane; Ex parte O'Flanagan (1923) 32 CLR 518.

50                  Once it is recognised that s 91R(3) operates to affect the rights, duties and privileges of aliens seeking to enter and remain in Australia - as is the applicant in the present case - it is clear that the provision is supported by both the immigration head of power and the aliens head of power which is, in any event, more expansive:  see Cunliffe v Commonwealth (1994) 124 ALR 120 at 130.

51                  Having found s 91R(3) to be a valid exercise of legislative power under either the aliens or immigration powers, it is unnecessary to consider the question of whether ss 36(2) and 91R(3) would be sustained by the external affairs power in s 51(xxix) of the Constitution. Unlike the Tasmanian Dams case and Victoria v Commonwealth, where the contested legislation could not have been supported by any head of power other than the power to enact laws with respect to external affairs, so that it was therefore critical to establish that the legislation was appropriate and adapted to the treaties they purported to enact into Australian domestic law, there are separate heads of power which support s 91R(3).

B. The application of s 91R(3) to the applicant's claims

52                  The applicant contended that the Tribunal’s findings referred to in [20] above involved “fundamental error” on its part.  That error was said to be demonstrated in the following passage:

“The Tribunal finds that the applicant has sought conversion in Australia for the sole purpose of creating a sur place refugee claim in Australia.  Section 91R(3) of the Act deals with claims relating to conduct engaged in by an applicant in Australia.  Section 91R(3) provides that in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Minister … that he or she engaged in the conduct otherwise than for the purpose of strengthening his or claim to be a refugee.  The applicant has not satisfied the Tribunal that he engaged in the conduct of conversion otherwise than for the purpose of strengthening his claim to be a refugee within the meaning of the Refugees Convention.  The Tribunal is satisfied that the applicant’s sole motivation in seeking out Sister Higgins and Father Monaghan and studying Christianity with a view to converting was to create a sur place refugee claim.  The Tribunal thus disregards all of the applicant’s claims in relation to this matter in assessing the applicant’s claims and thus disregards any genuine affinity which the applicant may have subsequently developed for the Catholic faith as a result of his continued study and contact with Sister Higgins and Father Monaghan.”

As appears, the Tribunal found that the applicant sought out Sister Higgins and Father Monaghan and studied Christianity solely to create a sur place refugee claim.  It used that finding as the reason to disregard any genuine Christian affinity which the applicant may subsequently have developed.  The process of reason is evidenced by the conjunctive “thus”.  Section 91R(3) is said not to justify the Tribunal disregarding any genuine Christian affinity the applicant developed in deciding whether he was a refugee sur place.

53                  Section 91R(3) directs the Tribunal to disregard any conduct engaged in by the applicant in Australia unless he comes within s 91R(3)(b).  Consequently, unless the applicant came within that reservation, the Tribunal correctly did not have regard to any conversion to Christianity whilst in Australia, as well as not having regard to his conduct in seeking out Sister Higgins and Father Monaghan and in not having regard to him “studying Christianity with a view to converting”.

54                  The reservation in s 91R(3)(b) requires the applicant to have satisfied the Tribunal (on the review, standing in the place of the respondent) firstly that at some point he did develop a genuine affinity with Christianity as a result of his conduct in continuing to study it and in continuing his contact with Sister Higgins and Father Monaghan, and secondly that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.

55                  In my judgment, the Tribunal’s reasons show clearly enough that it was not satisfied that the applicant at any time studied Christianity or maintained contact with Sister Higgins and Father Monaghan for a purpose which was not, or did not include, the purpose of strengthening his claim to be a refugee sur place.  The opening words of that paragraph quoted are quite explicit.  Its reasons are not to be construed with an eye keenly attuned to the perception of error:  Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.  It would be to fall into that error to treat the Tribunal’s finding as applying only to the applicant’s early contact with Sister Higgins and Father Monaghan.  Later in that passage, it referred to “the conduct of conversion”.  I do not think that reference is intended to be limited in time, such as to the initial processes of studying and contact.  It is not so expressed.  The reference to “continued study and contact” is not a recognition that, at some point, it was satisfied that the applicant’s conduct was not for the purpose of strengthening his claim to be a refugee.  It is to admit of the possibility that, notwithstanding the purpose of that conduct as found by the Tribunal, the applicant may nevertheless have developed genuine affinity with the Christian religion.  It is not inconsistent with that occurring that the Tribunal should not be satisfied that the applicant engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee.

56                  My conclusion as to the nature of the Tribunal’s finding is confirmed by the summary findings at the commencement of the “Findings and Reasons” section of its decision in the following terms:

“The applicant claims to be a Christian convert, having previously been a Moslem.  He claims to have commenced his interest in Christianity in Iran and to have followed it up after arrival in Australia by seeking instruction in the faith which eventually led to his conversion in the Catholic church.  The Tribunal does not accept that the applicant ever had any interest in Christianity, nor any contact with Christianity prior to his arrival in Australia.  The Tribunal finds that the applicant had deliberately engaged in a course of conduct in Australia, the sole purpose of which was to create a claim which he hoped would lead to his being granted refugee status in Australia.”

57                  Consequently, I am not persuaded that the Tribunal misapplied s 91R(3) in this matter.

58                  The applicant also contended that the Tribunal failed to put to the applicant for his response the issues of whether he would proselytise if he returned to Iran, whether he would maintain his Christian faith if he returned to Iran, and whether he held a fear of persecution if he returned to Iran.  The Tribunal has recorded the information about those matters provided by the applicant.  It is not necessary to repeat in detail his claims at his “arrival” interview on 12 January 2001, in his protection visa application, in documents subsequently supplied to the respondent some of which related to the claimed interest in Christianity, in written submissions to the Tribunal through his migration agent, in documents provided to the Tribunal in part also relating to his interest in Christianity, at the hearing on 5 October 2001, and in the subsequent submission from his migration agent accompanied by some documents again relating to his interest in Christianity.  A review of that material, in my view, leaves no scope for concluding that the applicant was unaware that the three matters referred to in the submission were matters which would demand the attention of the Tribunal, or for concluding that he did not have the opportunity of presenting to the Tribunal such information as he wished on those matters.

59                  Moreover, the Tribunal specifically addressed the question whether the applicant might proselytise if he returned to Iran.  It was not satisfied that he would do so.  In reaching that conclusion, it carefully considered in particular the evidence of Sister Higgins.  It found that “at most”, if the applicant did continue to pursue Christianity in Iran, he would merely attend services and participate in quiet worship.  Such attention as that behaviour might attract from the authorities did not, it found, give rise to a well-founded fear of persecution for reasons of his religion.  It also addressed whether he would practise Christianity in Iran if he returned there by assuming that issue in his favour for the purpose of considering how he would do so, and whether he might then be at risk of persecution.  The three particular matters raised by the contention were the subject of its consideration in the light of all the evidence.  It has not been shown to have been in error in its consideration of those matters.

60                  I record that the applicant has also sent directly to the Court a series of facsimile communications on 8 and 14 March, 3, 9, 16 and 18 April and 16 May 2002.  I have considered each of those communications.  In part, they are copies of documents sent to others which do not relate to the application before the Court or indeed directly to the applicant’s claims before the Tribunal.  I note in particular the following possibly relevant materials:

1.                  a letter from Father Monaghan to the Court dated 26 February 2002 speaking to the genuineness of the applicant’s conversion to Christianity and the probability that he would proselytise if he returned to Iran;

2.                  a copy of the applicant’s baptism and confirmation certificates confirming his baptism and confirmation on 23 October 2001;

3.                  letters from the applicant of 9 and 16 April 2002 complaining that the Tribunal rejected his claims, but did not seek further documentary confirmation of his claims to have had an active interest in Christianity whilst in Iran, and had ignored the evidence of Sister Higgins and Father Monaghan;

4.                  a letter from the applicant of 18 April 2002 asserting that he has an “important document in my country” to which, he claims, reference was made to the Tribunal but that the Tribunal indicated that it did not need the document to be presented because “I accept the claim”; and

5.                  an article apparently from “The Age” newspaper of 29 April 2002 concerning the treatment of two Iranian men refouled to Iran after unsuccessfully applying for protection visas, one of whom is a convert to Christianity.

61                  I do not consider that those matters lead to any different result on this application.  The issue of the applicant’s purpose in apparently converting to Christianity, and the issue of whether he might proselytise if he returns to Iran, were each addressed by the Tribunal.  It referred to the material before it on those issues, including a letter from Father Monaghan dated 26 September 2001 and oral evidence from Sister Higgins.  It explained why it reached its views notwithstanding that material.  The additional material is, in reality, in large measure an attempt to revisit the merits of the Tribunal’s findings.  That is not a course the Court is permitted to take.

62                  Similarly, the information in the newspaper report is further information on a matter which the Tribunal addressed, and upon which it made findings based upon material to which it referred.  To revisit the decision because that newspaper report is now available would be to embark upon a review of the merits of the Tribunal’s decision.

63                  I also reject the contentions that the Tribunal should itself have procured further documentary evidence from Iran concerning the applicant’s interest in Christianity, or that it inhibited the applicant through his migration agent from doing so.  The applicant was given the opportunity to present to the Tribunal such information as he considered might assist his claims.  The suggestion that the Tribunal misled him about the need to do so is not one which, in the circumstances, I accept.  That is for two reasons.  The first is that the applicant was represented before the Court by senior and junior counsel.  I understand their appearance for the applicant was pro bono publico.  The solicitors on the record for the applicant, also acting pro bono publico, have appeared for many residents of the Woomera Immigration Reception and Processing Centre.  I am confident that any such misleading statement by the Tribunal would have been the subject of instructions by the applicant and investigation by his legal representatives.  They did not raise any such point on the hearing of the application.  The second reason is that such an important document, if it existed and could have been procured, would have been identified by the applicant to his migration agent and presented to the Tribunal.  The applicant was on notice, as a result of the decision of the delegate of the respondent, that the genuineness of his claimed conversion to Christianity was an issue for the Tribunal to address.  The issue was fully ventilated before the Tribunal.  Evidence in writing was procured, including from Father Monaghan and orally from Sister Higgins.  The applicant should, at that time, have presented any evidence which he regarded as “important”.  There is no reason apparent why he did not do so, or more significantly to indicate that the Tribunal impeded his opportunity to do so by and at the hearing.

conclusion

64                  For those reasons, I do not consider that the applicant is entitled to an order under s 39B of the Judiciary Act declaring the Tribunal’s decision to be null and void.  In my judgment, the application should be dismissed.

Associate:

Dated:              5 June 2002