FEDERAL COURT OF AUSTRALIA

NAML v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1190

MIGRATION – application for protection visa refused – Refugee Review Tribunal affirmed decision of Minister – applicant is Iranian national who undertook studies in Russia – claim by applicant that he became an Evangelical Christian and that he was vilified by Orthodox Christians and Iranians because of his religion – witness provided evidence to the Refugee Review Tribunal in support of applicant’s claims – Refugee Review Tribunal rejected claims by applicant having regard to inconsistencies in evidence before it – applicant submitted that Refugee Review Tribunal erred in failing to consider evidence of witness – consideration of analysis of witness’ evidence by Refugee Review Tribunal – whether Refugee Review Tribunal ignored evidence provided by applicant’s witness

MIGRATION – application of s 474 of the Migration Act 1958 (Cth) had there been a failure to take into account evidence provided by witness – absence of express condition precedent – whether breach of inviolable limitation – whether a bona fide exercise of power

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 414, 424 and 474

NAAA v Minister for Immigration and Multicultural Affairs [2002] FCA 362 followed

NAAV v The Minister of Immigration and Multicultural Affairs [2002] FCAFC 228 followed

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 cited

O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 discussed

R v Murray; Ex parte Proctor (1949) 77 CLR 387 referred to

Reg. v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313 referred to

NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 referred to

Little v The Commonwealth (1947) 75 CLR 94 discussed

Spooner v Juddow (1850) 4 Moo. Ind. App 353 discussed

Webster v Lampard (1993) 177 CLR 598 referred to

NAML v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 616 of 2002

TAMBERLIN J

SYDNEY

27 SEPTEMBER 2002

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

1                     When the matter came on for hearing the applicant sought leave to file an amended application.  As there was no opposition by the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) to the substance of the amended application, I granted leave to file the amended application, except in so far as the amended application joined the Refugee Review Tribunal (“the RRT”) as a respondent.  I accepted the submissions of counsel for the Minister that the RRT was not a necessary or appropriate party to the application. In this respect I adopt the reasoning of Sackville J in NAAA v Minister for Immigration and Multicultural Affairs [2002] FCA 362 at [10]-[27].

2                     The applicant is a citizen of Iran who arrived in Australia on 10 August 1999.  On 5 June 2000 he lodged an application for a protection visa under the Migration Act 1958 (Cth) (“the Act”) on the basis that he was a refugee as defined by Article 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).

3                     The application for a protection visa was refused by a delegate of the Minister and on 14 July 2000 the applicant applied for review of that decision by the RRT.  The RRT on 1 May 2002 affirmed the decision not to grant a protection visa and from that decision an application for judicial review was made to this Court under s 39B of the Judiciary Act 1903 (Cth).  The applicant claims that the RRT erred in ignoring the evidence of a witness, Mr Tavallaie Farshchi, which he said corroborated his involvement with an Evangelical Christian group in Russia in the period between 1994 and 1999 and his claimed commitment to Christianity after arrival in Australia.

4                     The applicant was born in 1968 and raised in Iran and is the son of an affluent gynaecologist.  His parents were strict Muslims who supported the Islamic revolution and this loyalty to the Islamic regime was rewarded by his father’s promotions within the medical hierarchy in Iran.  As a child he came into contact with Christian children, which caused him to become disillusioned with the fanaticism and intolerance which he saw as afflicting the practice of Islam.  He says that this was reinforced by the necessity of being seen to follow Islamic rituals at university.  During the course of his studies at university he claimed that he became more interested in Christianity although he did not reveal this to his parents.  He completed a science degree in Iran and was accepted in the Moscow Medical Academy where he commenced studying medicine in January 1993.  In Russia the applicant claims that he found the Russian Orthodox Church to be “austere and inflexible”. 

5                     The applicant claims that he and a friend, Mr Tavallaie Farshchi, who was also studying medicine in Moscow, were attracted to an Evangelical Christian Union at the university which held frequent bible study groups and prayer meetings.  He says that he became a full member of the Union and carried what he considered to be a duty to evangelise.  The Union used an amphitheatre and not a church within the university for its activities as there was no Evangelical Church.  He claims that Evangelical Christians were harassed and vilified by Orthodox Christians but the applicant most feared Iranians in Moscow who were loyal to the Iranian regime.  He claimed to have received phone calls from Iranians threatening him for his apostasy and that he was physically assaulted in his apartment for this and for his Evangelism.  He says that this occurred during the summer vacation in 1997 when he and Mr Tavallaie Farshchi who had been less involved than him in Christian activities, returned to Iran.  The applicant claims that the assaults did not stop him evangelising despite the continuance of the threatening phone calls. 

6                     In 1998, a few months before he was due to graduate, the applicant says that he received photos of himself coming and going from the “church” together with statements that he was an apostate.  These were signed by Iranians.  He says he was informed by an anonymous caller that the material was being passed to the Iranian government.  He also claims that after Mr Tavallaie Farshchi was assaulted by agents of the Iranian government in February 1999, that he and Mr Tavallaie Farshchi decided that it would not be safe to remain in either Russia or Iran and the applicant applied for a visa to continue studies in Australia because of Australia’s democracy and perceived tolerance.  He says he was afraid to return to Iran.  However, he did go back to Iran in 1999 at the behest of his father to whom he was very close.  He says this was because he believed that his father’s authority and influence could save him from harm.  He claims that he was detained at the airport on entry and was abused, beaten, and later released into his father’s care.  He was again re-arrested and he left the country because he said his father paid a bribe to facilitate his exit.  He claims to have received a notice requiring him to appear before an Islamic court in Iran.

7                     At the hearing the RRT member asked the applicant a large number of questions about his alleged activities in Russia and his return trip to Iran.

8                     The applicant called three witnesses to give evidence at the hearing. Two Australian Ministers of religion gave evidence as to the applicant’s current adherence to Christianity in Australia.  Mr Tavallaie Farshchi gave evidence of his association with the applicant and their involvement in the Evangelical Union while at the Moscow Medical Academy.  Mr Tavallaie Farshchi’s evidence was to the effect that the applicant was more involved in Christian activities than he had been in Russia and he gave evidence as to the name of the leader of the Union and the location of the amphitheatre where religious activities were held.

9                     In relation to Mr Tavallaie Farshchi’s evidence, the RRT member, at the close of the hearing, said that she thought Mr Tavallaie Farshchi’s evidence had been very helpful and that he had gone some way towards convincing her that the applicant was a genuine Christian.  However, the member said that she was troubled by a combination of matters which she had referred to during the hearing and informed the applicant that if any further submissions were thought appropriate, he could make further submissions, particularly in relation to the question as to whether there was some way of obtaining confirmation that the relevant group of Evangelical Christians existed in Russia and that he was a member of the group or that he was involved in Christian activities whilst in Russia.  The member said that Mr Tavallaie Farshchi had provided assistance in relation to these issues as a source of evidence but observed that he was a “good old friend” and that this had to be borne in mind.

10                  Subsequent to the hearing, the applicant’s advisers wrote to the RRT member stating that the applicant was only able to give the address of one church in Moscow, namely the Church of Saint Andrew.  The letter gave details of the location of the church in Moscow together with a website address.  The letter stated that contact could not be made with the church as it may have possibly moved location or closed.  The advisers requested that the RRT place appropriate weight on the evidence of Mr Tavallaie Farshchi, who it was said had been residing in Moscow at the same time as the applicant and could verify the applicant’s attendance at the church.

rrt decision

11                  After referring in detail to the evidence of the applicant and to the inquiries which the member had made to the applicant, the RRT member proceeded to make findings and give reasons.  The member was satisfied that the applicant was a national of Iran.  She found that there were a number of inconsistencies in his evidence.  Six matters were specifically considered.  The first was that his evidence was not consistent with a five year period of regular attendance at a single place of worship, having regard to the fact that he was unable to recall the name of the person who conducted services during that period or of the street in which the place of worship was situated.  Second, the applicant gave oral evidence that he did not attend any church in Russia after 1994 but said that he attended an amphitheatre at the university at which the religious services were held.  There was no name given to this amphitheatre apart from reference to a number, namely “No 1”.  The member referred to the letter written after the hearing by the applicant’s advisers and pointed out that the applicant there claimed, inconsistently with his earlier evidence and that of Mr Tavallaie Farshchi, that he had attended a church and that Mr Tavallaie Farshchi had confirmed this in his evidence to the RRT.  The member pointed out that the reference to the church was not mentioned by Mr Tavallaie Farshchi in his evidence and the applicant had not explained this inconsistency in the evidence.  Therefore, the member did not consider plausible the belated claim that he attended the Church of Saint Andrew and did not accept that he did so.  The willingness to make what in the conclusion of the RRT was a new, apparently untrue, claim was clearly important in the eyes of the member and led the member to infer that the applicant was not a reliable witness. 

12                  The third matter raised by the member was a United States State Department report produced in 1999.  At the time the applicant was living and studying in Moscow the report indicated there were many churches which he could have attended, including Evangelical churches unrelated to the Russian Orthodox church.  This was seen as providing inconsistency between his claims of evangelising and his apparent unawareness of the existence of these other churches. 

13                  Fourth, the applicant claimed that he was conscious that persons with his beliefs might be tortured and imprisoned in Iran.  Nevertheless he went back to Iran in 1999 and the RRT member did not consider that the reason given, namely to visit his father, was credible if his claimed belief that he would risk being tortured and imprisoned in Iran were to be accepted.  This willingness to voluntarily enter the country in 1999 was seen to be inconsistent with his claim. 

14                  The fifth matter raised was that the RRT member did not find that the claim relating to his questioning at the airport in Teheran and subsequent events could be accepted because these claims were not generally consistent with the independent evidence before the RRT. 

15                  Finally, the member did not find the applicant’s claim that he had been issued with a notice to appear in court to be consistent with evidence from intelligence sources, namely Department of Foreign Affairs and Trade reports of 1996 and 2000.

16                  For the above reasons the RRT were not satisfied that the applicant was a devout Evangelical Christian in Russia or that he was perceived by fellow Iranians either in Russia or on return to Iran as being a devout Evangelical Christian as he had claimed.  The member accepted that the applicant had been recently baptised as a Christian in Australia but found that the applicant had converted to Christianity for the purpose of strengthening his claim to be a refugee.  Because the member found that the applicant’s claims to be a devout Christian before he arrived in Australia were not credible, it treated with caution his claim to have formally converted.  The conclusion of the RRT was that:

“…. given that I have not accepted that the conversion is genuine, and have found that he was not involved, or suspected of being involved, in Christian activities before arriving in Australia, I cannot be satisfied that he will continue to practise Christianity if he returns to Iran or that his baptism will have any adverse consequences for him in Iran.”

17                  Accordingly, the member found that the applicant did not have a well-founded fear of Convention related persecution in relation to Iran.

reasoning on this application

was there any error

18                  Essentially, the claim by the applicant is that the RRT erred because it ignored the substance of the corroborating evidence by Mr Tavallaie Farshchi in support of the applicant’s case.  Reference was made to the statement that the member made in the course of the hearing that the evidence of Mr Tavallaie Farshchi was “helpful” and it was argued that the member made no specific finding as to non-acceptance of that evidence.  It is said there was no discussion in the reasoning as to the basis for which his evidence was not accepted as credible and corroborative in support of the applicant’s case.  The applicant says that if this evidence been properly considered it may well have led the member to a different conclusion.

19                  When considering decisions of an administrative body it is essential to read the reasons as a whole.  Over recent years a practice has developed of formatting reasons for decision into headings in the interest of clarity and to assist the reader in obtaining easy reference to relevant portions of a decision.  This in turn has led to a tendency to artificially divide reasons for decision into discrete areas and to suggest that there has been error by reference to what is said is part of a decision taken on its own.  This, in my view, has occurred in the present case.  The submissions for the applicant place undue emphasis on what is discussed under the heading “Findings and Reasons” and does not give sufficient weight to the earlier discussion in the reasons concerning the evidence of Mr Tavallaie Farshchi.  That evidence, as I have indicated, was extensive and the member considered it in some detail.  The fact that there is little discussion under the headings “Findings and Reasons” of the evidence of Mr Tavallaie Farshchi does not mean that the evidence has been overlooked or ignored.

20                  The RRT reasons disclose that the applicant was questioned in some detail as to the evidence presented by Mr Tavallaie Farshchi and his relationship with the witness in relation to the practice of Evangelical Christianity.  These issues occupied several pages of the decision.  The RRT member then summarised the evidence of Mr Tavallaie Farshchi in detail and set out a series of questions which she asked Mr Tavallaie Farshchi during the hearing. 

21                  From the above material it is apparent that the RRT member did not ignore the evidence of Mr Tavallaie Farshchi and was conscious of that evidence when setting out the reasons for decision.  Moreover, the transcript of the hearing before the RRT indicates that the member was concerned about the evidence which had been given by Mr Tavallaie Farshchi.  In her consideration of the findings and reasons the member referred to the evidence of Mr Tavallaie Farshchi and pointed out that the reference to the Church of Saint Andrew was not mentioned by the applicant in his evidence.  The member also pointed out Mr Tavallaie Farshchi was a “good old friend” of the applicant.  It is true that the evidence of Mr Tavallaie Farshchi was corroborative to some extent of the applicant’s assertions as to a commitment to an Evangelical style of Christian religion in Russia.  However, there were clearly countervailing considerations bearing on the mind of the member in referring at length to the inconsistencies in the evidence, the county information, and the fact that Mr Tavallaie Farshchi was a “good friend” of the applicant.  The evidence of Mr Tavallaie Farshchi had to be weighed against the difficulties which the member perceived in the applicant’s evidence.  It is apparent from the reasons that the decision-maker considered the question as a complex matter which fell to be considered in the light of assessments based on consistency, personality, religious convictions and the nature of the predisposition to embrace the Christian faith.  In finding that she was not satisfied that the applicant was a devout Evangelical Christian in Russia or had been perceived as such by fellow Iranians, the RRT member was engaged in a balancing exercise.  In my view, no reviewable error has been disclosed in the approach or reasoning which was taken by the member in this case.  It was open, in my view, to the RRT on the available material, to reach the conclusion which it did, although of course it was not bound to do so.

section 474

22                  Even if contrary to the above conclusions , there has been a failure by the member to take into account the evidence of the corroborating witness, the question arises whether this comes within an exception to the principles as they apply to s 474 of the Act.  There is no provision in the Act which expressly and specifically requires the RRT to take into account the evidence of an alleged corroborating witness.  Nor is there any express condition precedent to this effect which must be complied with before jurisdiction is exercised.  There is no relevant constitutional limitation on the power of the RRT to make the decision in question.  Nor is there any provision which provides that the effect of such an error would invalidate a decision.

23                  The applicant seeks to rely on ss 414(1) and 424(1) of the Act and submits that the obligation of the RRT to “review” the decision requires the evidence of a corroborating witness to be taken into account and that failure to do so is therefore a failure to “review” the decision.  It is also submitted that s 424(1) imposes an obligation to have regard to information placed before it and that this requirement was not satisfied because the substance of the evidence by Mr Tavallaie Farshchi was ignored.  It is submitted that both sections have been breached and that the decision is consequently invalid notwithstanding the operation of s 474 of the Act because the obligations to review the decision and take the information into account are inviolable limitations or restraints on the RRT decision-making process.

24                  The submission in relation to both sections is that the RRT must properly review the decision of the delegate and have regard to information before it in making its decision.  It is submitted that this is a statutory mandate, breach of which will take the decision outside the protection of s 474 because compliance with the section is an inviolable limitation or restraint on the exercise of power to review.  It is submitted that a breach of either provision would invalidate the decision of the RRT.

25                  It is true that there is a condition precedent in s 414(1).  However, it relates to the making of a valid application and not to the carrying out of a review.  It cannot be said in the present case that there had not been a “review” of the decision.  Rather, the objection is that the RRT erred in the course of carrying out a review by not taking into account a relevant matter, namely the corroborative evidence of Mr Tavallaie Farshchi.  This would not, in my view, amount to a breach of an “inviolable” requirement.  At best, even assuming there was an error, it is an error within jurisdiction in relation to a question of fact and degree in reasoning to a conclusion as to the credibility of the evidence of the applicant in circumstances where the evidence submitted by him is inconsistent with the evidence of Mr Tavallaie Farshchi and country information.  The same reasoning applies in respect of the alleged breach of s 424(1).

26                  The authorities considered in the recent Full Court judgment in NAAV v The Minister of Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 indicate that to come within the exception to s 474, on the premise that there has been a breach of an “inviolable limitation”, it must be shown that there is some fundamental or specific statutory constraint which has been breached on which the valid exercise of power depends.  What might on one view be seen as a basic error, a failure to ask the correct question, the identification of a wrong issue or the ignoring of relevant material or reliance on irrelevant material will not suffice to affect the protection of s 474: see NAAV at [30] and [639].  No such fundamental constraint has been pointed to in the present case.

bona fide attempt

27                  A claim for lack of bona fide is such a serious allegation that it should not be made lightly and it generally calls for proof of extreme circumstances.  Where, for example, an exercise of power is based on a fact which the decision-maker knows not to be true there is no bona fide exercise of the power.  The same position applies where a decision-maker considers there is not a substantial possibility that the fact is true but nevertheless acts on that basis.  The lack of bona fide is usually associated with dishonesty or action which is shown to be contrived or colourable.  On the other hand, a decision may not lack bona fides where the decision-maker could consider that the decision is correct even if there is some uncertainty about the position.  Merely to establish that there has been an exercise of power which proves to be erroneous in fact or law is not sufficient to establish that a decision lacks bona fides.

28                  The applicant also submits in this case that there has been no bona fide attempt to exercise the jurisdiction conferred on the RRT.  It is not suggested that there was any lack of honesty on the part of the RRT member or that the power was exercised for an improper purpose.  The applicant contends that the words bona fide can include circumstances where there has been no dishonesty, blameworthy conduct or improper motive, on the part of the decision-maker, but where there has been no real attempt to exercise the power when considered from a purely objective viewpoint.  The authorities indicate that to establish lack of bona fide in relation to an attempt to exercise jurisdiction,something in the nature of dishonesty in the sense of an improper purpose, or conduct worthy of personal criticism of the decision-maker is usually present.  There may be cases, however, where the “attempt” falls so far short of what might reasonably be considered a genuine attempt, that it cannot be considered on any objective view to be any attempt at all, notwithstanding the subjective belief of the decision-maker.  However, that is not the present case.

29                  The question as to the meaning of the “bona fide attempt” in relation to the Hickman principle (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) was considered by Mason CJ in O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 249 where his Honour expressed the view that the subjective intentions or motivations of the decision-maker can be important when considering whether there has been a bona fide attempt to exercise administrative power.  Mason CJ made reference to the statement by Dixon J in R v Murray; Ex parte Proctor (1949) 77 CLR 387 at 400 where his Honour applied Hickman and referred to:

“ … an honest attempt to deal with a subject mater confided to the tribunal.”  (Emphasis added)

30                  Mason CJ in O’Toole also points to the observations of Kitto J in Reg. v Commonwealth Industrial Court Judges; Ex parte Cocks (1968) 121 CLR 313 at 32.  See also the authorities collected to in NAAG v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 713 at [24]

31                  There is also a helpful discussion of the meaning of the expression “bona fide” in Little v The Commonwealth (1947) 75 CLR 94 at 108-111 by Dixon J.  At 109 his Honour refers to a statement in the Privy Council decision of Spooner v Juddow (1850) 4 Moo. Ind. App 353 at 379-380 to the following effect:

‘“There can be no rule more firmly established, than that if partiesbona fide and not absurdly believe that they are acting in pursuance of statutes, and according to law, they are entitled to the special protection which the Legislature intended for them, although they have done an illegal act.”’ (Emphasis added)

32                  After considering the relevant authorities, Dixon J said at 112:

“The truth is that a man acts in pursuance of a statutory provision when he is honestly engaged in a course of action that falls within the general purpose of the provision.  The explanation of his failure to keep within his authority or comply with the conditions governing its exercise may lie in mistake of fact, default in care or judgment, or ignorance or mistake of law.  But these are reasons which explain why he needs the protection of the provision and may at the same time justify the conclusion that he acted bona fide in the course he adopted and that it amounted to an attempt to do what is in fact within the purpose of the substantial enactment.” (Emphasis added)

33                  These observations of Dixon J were referred to by the High Court in Webster v Lampard (1993) 177 CLR 598 at 605-608.  The observations, in my view, are apposite in the circumstances of the present case and where there is no suggestion of lack of honesty or improper of purpose on the part of the RRT member, the submission must fail.

34                  For the above reasons the application must be dismissed with costs.

Associate:

Dated:              27 September 2002