FEDERAL COURT OF AUSTRALIA

NAST v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 1536

NAST v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 877 of 2002

WILCOX J

SYDNEY

29 NOVEMBER 2002

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay the costs of the respondent.

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

REASONS FOR JUDGMENT

WILCOX J:

1                     This is an application for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”).  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”), the respondent.  The delegate had decided not to grant to the applicant a protection visa.

2                     The applicant is a national of Iran.  He is apparently a journalist by profession.  He came to Australia on 27 September 2000.  On 10 November 2000 he lodged an application for a protection visa, claiming to be a refugee.  The basis of his claim was that he had a well-founded fear of being persecuted if returned to Iran for reasons of religion.  He told the Tribunal he had become a Christian in Iran and that, since he has been in Australia, he has pursued his study of Christianity.  He has been involved in a Christian congregation in Sydney and has been baptised.  The applicant claimed that Christians are at risk of persecution in Iran, particularly when they have converted from Islam to Christianity, as was the claimed position of the applicant.

3                     The Tribunal accepted that persons who convert from Islam to Christianity are at risk of persecution in Iran.  The Tribunal member said country information indicates this depends to a large extent on the degree of proselytising which a particular person undertakes. 

4                     However, the Tribunal was not prepared to accept that the applicant had genuinely converted to Christianity. This was so, notwithstanding the fact that the applicant called three witnesses associated with the Christian church he had been attending in Sydney.  They deposed to the fact that he had attended church regularly, been baptised, and been involved in activities in the congregation.  Apparently these included a major role in relation to a hymn book.

5                     It is, of course, trite law that the facts of the case are for the Tribunal to determine.  This Court can intervene only if there is a legal or procedural error which survives the application of the Hickman principles which were discussed in the decision of the Full Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) FCAFC 228.

6                     Mr Nair of counsel put three submissions on behalf of the applicant.  First, he says the Tribunal failed to comply with the requirement of s 424A of the Migration Act 1958 (Cth) (“the Act”); compliance with s 424A was an inviolable condition of the exercise of the Tribunal’s jurisdiction; accordingly the failure constitutes one of the exceptions to the Hickman principles which was recognised in NAAV.

7                     Section 424A(1) provides as follows:

“Subject to subsection (3), the Tribunal must:

(a)               give to the applicant in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review;  and

(b)               ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review;  and

(c)               invite the applicant to comment on it.”

8                     Subsection (3) says:

“This section does not apply to information:

(a)                that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member;  or

(b)                that the applicant gave for the purpose of the application; or

(c)                 that is non disclosable information.”

9                     Mr Nair argues that s 424A applies to this case because of a statement made by the Tribunal member in that section of her reasons for decision that is headed “Findings and Reasons”.  The Tribunal member, at page 18 of her reasons, was discussing the applicant’s claim to have converted to Christianity.  She referred to s 91R(3) of the Act, one of the additions made to the Act in 2001.  Section 91R(3) is in the following form:

“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 other than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugee Convention as amended by the Refugees Protocol.”

10                  The Tribunal said this:

“However, in determining whether a person has a well-founded fear of being persecuted for one or more of the Convention reasons the Minister (the Tribunal standing in the shoes of the Minister) must disregard any conduct engaged in by the person in Australia unless he or she satisfies the Minister that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee (see section 91R(3) of the Act).  In the present case I am not satisfied that the applicant attended church and was baptised as a Christian in Australia other than for the purpose of enhancing his claim to be a refugee.  In coming to this conclusion I have regarded the following: 

Firstly, I have found that he was not involved in any organised Christian activities whatsoever in Iran.

Secondly, I accept that fellow members of the congregation of his church in Sydney perceive him to have genuinely converted to Christianity and that he has been attending church and Bible studies in Sydney.  I note he has been active in the publication of a hymn book.  I have borne in mind the observation from the Assembly of God Church in Tehran (CX41982) that some Iranians attend church and convert to Christianity with the specific goal of remaining outside Iran.  I consider that observation is relevant to this case.

I have already found the applicant is not a witness of truth.  I am of the view that if he is prepared to mislead the Department in relation to his reasons for leaving Iran he is prepared to mislead the Tribunal in relation to his recent conversion.

I find the applicant has converted to Christianity and became involved in church publication activities for the sole purpose of strengthening his claims to be a refugee.  As I have not accepted his conversion is genuine, and I have found that the applicant was not involved in any organised Christian activities whatsoever in Iran, there is nothing to suggest he will continue to practice [sic] Christianity if he returns to Iran.”

11                  The s 424A point raised by Mr Nair depends on the reference by the Tribunal member to the observation emanating from the Assembly of God Church in Tehran.  The reference in brackets is to a document, which might perhaps be regarded as country information and was said not to have been drawn to the attention of the applicant. 

12                  In my opinion this is not a document which is required to be drawn to an applicant's attention pursuant to s 424A.  To the extent that the observation is anything more than a general observation about human nature, it is an observation about a class of persons: Iranians who attend church and convert to Christianity (apparently outside Iran) with the specific goal of remaining outside Iran.  The information, if it deserves to be called that, is not information that is specifically about the applicant or another person.  If it is information at all, it is “just about a class of persons” of which, in the Tribunal’s judgment, the applicant is a member. 

13                  It is important to emphasise that the communication from the Assembly of God Church in Tehran made no reference to the applicant personally.  It was a general statement to the effect that some people who leave Iran then pretend to convert to Christianity in order to strengthen their chances of obtaining refugee status.

14                  It seems to me that there was no obligation upon the Tribunal member to draw the applicant’s attention to this communication.  It may have been a good idea to have done so, but that is a different matter from whether or not the failure constitutes a breach of s 424A. 

15                  I should add that, in any event, I do not think that failure to comply with s 424A provides a ground of relief that survives the amendments to the legislation that took effect last year.  There are now a number of decisions of this Court to that effect.  In my view, the obligation is one that arises in the context of making a single decision.  It is not an obligation of the type considered in two of the cases heard by the Full Court in the NAAV appeals, where there were two separate decisions to be made: the cancellation of a visa and then consideration of an application for restoration of the visa.

16                  The second point raised by Mr Nair depends upon s 420 of the Act.  Section 420 says:

“(1)     The Tribunal in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)       The Tribunal, in reviewing a decision:

(a)              is not bound by technicalities, legal forms or rules of evidence; and

(b)       must act according to substantial justice and the merits of the case.”

17                  Mr Nair’s argument, in substance, is that subss (1) and (2)(b) lay down inviolable conditions for the exercise of the Tribunal’s jurisdiction to comply with which creates reviewable error. 

18                  In my opinion this submission cannot stand with the decision of the High Court of Australia in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611.  Eshetu arose out of the legislation in an earlier form.  At that time s 476(1) set out the grounds available for judicial review, in the Federal Court, of decisions, inter alia, of the Tribunal.  Paragraph (a) of that subsection provided, as a ground:

“(a)     that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;”

19                  There were a number of decisions, by members of this Court, to the effect that failure to comply with subs (1) or subs (2)(b) of s 420 of the Act constituted a failure to comply with a procedure required by the Act; accordingly, such failure gave rise to a ground of review available under s 476(1)(a).  There were also decisions in this Court to the contrary effect.  The High Court held that s 476(1)(a) did not extend to a failure to comply with any part of s 420.

20                  If that is so, it seems to me a fortiori that s 420 cannot create an inviolable condition, failure to comply with which gives rise to a ground of review.  The question is not whether the Tribunal is bound to comply with s 420; it obviously is.  The question is whether a failure by the Tribunal gives rise to a ground of review in this Court.  Eshetu held this was not so under the previous form of the legislation.  As I say, that must apply a fortiori under the present legislation.

21                  The final ground argued by Mr Nair is actual bias.  It was not suggested anything done by the Tribunal member evinced bias.  In essence, the argument was that the member's failure to believe the applicant was so indefensible that the only available conclusion must be that she was biased against him; or, as Mr Nair put it, that she had prejudged the case. 

22                  Actual bias is an extremely difficult ground to make out.  Rarely will the reasons and findings of a Tribunal member suffice to establish actual bias.

23                  I commented to Mr Nair, during the course of argument, that I had doubts about the Tribunal’s view that the applicant had misled the Department.  Her view seems to depend upon a distinction between persecution by “the public sector” and persecution by “the government”.  The Tribunal was influenced by the fact that the applicant referred, on one occasion, to the public sector and, on the other, to the government.  This is a distinction about which I would myself be cautious.  It is not obvious to me there is much difference; particularly in a State such as Iran where, as I understand the position, the government has a dominating role over the whole of the public life, and much of the private life, of the country.  Furthermore, one must remember that the applicant’s statements were made through an interpreter.  It is conceivable that different interpreters selected different English words for what was really the same thing.

24                  However, this is a question of fact.  The Tribunal had the benefit of hearing the applicant give his evidence and the opportunity of asking him questions.  It is irrelevant whether or not I myself would have come to the same conclusion as the Tribunal about the applicant's honesty.  The determination of the applicant’s credibility was for the Tribunal, and the Tribunal alone.  The point is relevant only if it is possible to go so far as to say the determination is so outrageous that it must indicate actual bias.  I cannot say that.

25                  If the Tribunal was correct in thinking the applicant misled the Department and/or the Tribunal in relation the persecution that he claimed, it would not be a large step to say, as the Tribunal did, that he would also be prepared to mislead the Tribunal in relation to his conversion to Christianity. 

26                  The effect of s 91R(3) is that an applicant has an onus of proof in relation to activities in Australia.  The person must satisfy the Minister or the Tribunal, as the case may be, that the relevant conduct was engaged in “otherwise than for the purpose of strengthening the person's claim to be a refugee”.  The onus of proof is, no doubt, to the civil standard; but it is an onus borne by the applicant.  It is a change from the usual position faced by the Tribunal, where the benefit of doubtful facts must be given to an applicant for refugee status. 

27                  In the present case, the applicant failed to satisfy the Tribunal about the genuineness of his conversion.  I do not think that the Tribunal’s rejection of his claim goes anything like the distance that would be required to make good a claim of actual bias.  At the most, it can be said there was a questionable finding of fact.  It is unfortunate if, as a result of a wrong finding of fact, the applicant’s claim to refugee status has been incorrectly rejected.  However, the Court has very limited power.  In particular, the Court cannot review the Tribunal’s findings of fact. 

28                  None of the grounds of review relied upon by the applicant is made good.  The result is that the application must be dismissed. 

29                  The order that I make is that the application be dismissed with costs.

Associate:

Dated:              29 November 2002