FEDERAL COURT OF AUSTRALIA

Minister for Immigration & Multicultural & Indigenous Affairs v NASS

[2003] FCA 477

MIGRATION – Appeal against magistrate’s decision to set aside decision of Refugee Review Tribunal – Whether Tribunal failed to approach its task in good faith – Alleged recklessness by Tribunal in evaluating evidence – Tribunal’s reasons misstated applicant’s evidence in numerous respects and used the problems suggested by the misstatements as a basis for disbelieving the applicant – Appeal dismissed.

SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 applied

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS v NASS

N 63 of 2003

WILCOX J

20 MAY 2003

SYDNEY

ON APPEAL FROM A FEDERAL MAGISTRATE

THE COURT ORDERS THAT:

1.         The appeal be dismissed.

2.         The appellant, Minister for Immigration and Multicultural and Indigenous Affairs, pay the costs of the respondent.

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

ON APPEAL FROM A FEDERAL MAGISTRATE

REASONS FOR JUDGMENT

WILCOX J:

1                     This is an appeal by the Minister for Immigration and Multicultural and Indigenous Affairs (“the Minister”) against a decision of a federal magistrate (Raphael FM) allowing 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 to refuse to grant the respondent a protection visa.  The respondent filed a notice of contention by which he sought to sustain the magistrate’s decision upon an alternative ground that was not accepted by the magistrate.

2                     Pursuant to s 25(1A) of the Federal Court of Australia Act 1976, the Chief Justice directed the appeal be heard by a single judge of the Court.

Background

3                     The respondent, an Iranian citizen, arrived in Australia on 21 March 2000.  He sought a protection visa, claiming to be a refugee, within the meaning of the 1951 Convention relating to the Status of Refugees (as amended by the 1967 Protocol relating to the Status of Refugees), by reason of the fact that he had a well-founded fear of persecution on the ground of his religion.  Although he is the respondent to this appeal, it is convenient to refer to this person as “the applicant”, as did the Tribunal and Raphael FM.

4                     The applicant claimed he became a Christian, while still in Iran, and this led to his arrest on two occasions.  On those occasions, he said, he was interrogated and tortured; he regained his freedom only upon his family paying large bribes.

5                     The Tribunal accepted that, since his arrival in Australia, the applicant had involved himself in Christian activities.  However, the Tribunal said this was done only “to provide for himself the profile of, and the enhance his claims to be, a refugee”.  Accordingly, the Tribunal held s 91R(3) of the Migration Act 1958 applied to the applicant “and his conduct in Australia must be disregarded in determining whether he has a well founded fear of being persecuted for Convention reasons”.

6                     The Tribunal did not accept that the applicant had become a Christian while still in Iran.  The member disbelieved the incidents of persecution claimed by the applicant, finding that “overall [his] evidence was not reliable”.  The member expressed the view “that he fabricated most aspects of his claims in an attempt to create for himself the profile of a refugee”.

7                     The Tribunal did not suggest the incidents claimed by the applicant, if true, would not have amounted to persecution for a Convention reason; the applicant’s claim for a protection visa failed because he was disbelieved.

The magistrate’s decision

8                     The hearing before the magistrate took place on 18 December 2002, before the  decision of the High Court of Australia in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; 195 ALR 24.  Consequently, counsel argued the application for judicial review by reference to the so-called “Hickman exceptions”.  Counsel for the applicant (Mr L Karp) relied on the first exception in contending to the magistrate that the Tribunal failed to make a bona fide attempt to exercise its power.  Mr Karp put this submission on alternative bases.  First, he argued, the actions of the Tribunal, in its review of the evidence and its findings and conclusions, amounted to “a concerted, blatant and dishonest attempt to find against the applicant on the basis of lack of credit”.  Alternatively, Mr Karp said:  “the Tribunal has been so recklessly indifferent to the accuracy or otherwise of its statements that it cannot be said to have made a bona fide attempt to exercise its power”.

9                     Raphael FM did not accept the first submission, of deliberate dishonesty; but he upheld the alternative submission, recklessness.  In doing so, he referred to a table provided to him by Mr Karp detailing fifteen alleged misstatements, by the Tribunal in its reasons, of the evidence.  Counsel for the Minister (Mr J Smith) had responded to that table, conceding many of the misstatements claimed by Mr Karp.  The magistrate set out the table in his reasons for judgment and added references to two additional statements of the evidence by the Tribunal that he had found for himself and thought to be dubious.

10                  The magistrate had a transcript of the evidence given by the applicant to the Tribunal.  So he was able to determine whether the errors claimed by Mr Karp had occurred and their significance.

11                  The magistrate accepted the accuracy of Mr Karp’s table in relation to each of the errors claimed by him, although he thought three of them were insignificant, in the sense that they would not have affected the Tribunal member’s understanding of the case put to him by the applicant.  However, the magistrate expressed concern that other errors might have affected the Tribunal’s assessment of the applicant’s credibility.

12                  In para 9 of his reasons for judgment Raphael FM said:

“I have no evidence before me that the Tribunal had before it the transcript of the hearing or that it heard the tape.  I would therefore propose to proceed on the basis put forward by the [Minister’s] counsel that the Tribunal began to deal with this matter some months after the hearing had taken place.  I am guided, in my approach as to whether what occurred constitutes a failure to approach the Tribunal’s task in good faith, by the views of the Full Bench of the Federal Court in SBBS v Minister for Immigration  [2002] FCAFC 361 and in particular [42 to 59].” 

13                  I interpolate that the hearing before the Tribunal took place on 12 December 2001.  The decision was published over six months later, on 30 June 2002.

14                  Raphael FM went on to note the argument put by Mr Karp “is that the actions of the Tribunal demonstrate a recklessness in the exercise of the power”.  He referred to a statement by Heerey and Kiefel JJ in Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 at para 8:

“As with other areas of the law where wrongful intent is in issue, reckless indifference may be the equivalent of intent.  But this is not to say that the test is objective.  The inquiry is directed to the actual state of mind of the decision-maker.  There is no such thing as deemed or constructive bad faith.  It is the ultimate decision – in the case of the RRT, affirming the rejection of a protection visa application – which must be shown to have been taken in bad faith.   Illogical factual findings or procedural blunders along the way will usually not be sufficient to base a finding of bad faith.  Such defects can be equally explicable as the result of obtuseness, overwork, forgetfulness, irritability or other human failings not inconsistent with an honest attempt to discharge the decision makers duty.”

15                  On the other hand, commented Raphael FM, “no Full Bench or High Court decision has yet resiled from the statement of Lord Bridge in R v Secretary of State for the Home Department; ex parte Bugdaycay [1987] AC 514 at 531”:

“The most fundamental of all human rights is the individual’s right to life and when an administrative decision under challenge is said to be one which may put the applicant’s life at risk, the basis of the decision must surely call for the most anxious scrutiny.”

16                  At paras 12 and 13 Raphael FM set out his conclusion:

“I have found that the Tribunal made a significant number of errors.  Worse, in many cases, those errors contributed to the decision which it made not to accept the applicant’s story.  If, as suggested by the respondent, the Tribunal waited some months before embarking upon the writing of its decision and forgot what questions it did ask or what responses the applicant gave, then it would seem to me that by not (at the very least) playing the tape which is always available, it was acting with reckless indifference to the effect of its forgetfulness upon the decision.  I am not suggesting that the Tribunal knew that its decision was wrong, that is not necessary ….  I believe that a heavy burden is placed on the Tribunal because of the very width of its powers.  Section 474 of the Migration Act gives the Tribunal extraordinary rights.  But with extraordinary rights come extraordinary responsibilities and obligations.  The obligation is not one not to make mistakes, but it is an obligation not to abuse the privilege given to it by undertaking its tasks in a reckless manner.  I am satisfied that this is what occurred here. …

I am satisfied that in coming to its decision in this matter, in the manner in which it did, the Tribunal did not enter upon its task in a bona fide manner.”

The appellant’s submissions

17                  In putting submissions in support of the appeal, Mr Smith did not suggest Raphael FM erred in his analysis of the errors suggested to him by Mr Karp.  Neither did he challenge the learned magistrate’s statement that the obligation of the Tribunal “is not one not to make mistakes, but it is an obligation not to abuse the privilege given to it by undertaking its tasks in a reckless manner”.  Nonetheless, he argued the magistrate erred in allowing the application for review.  Mr Smith advanced a number of submissions in support of that argument.

18                  First, he said, the magistrate failed to take into account the seriousness of an allegation of lack of good faith.  He said such an allegation is “not lightly to be made and necessitates proof of extreme circumstances”.  He referred to s 140(2)(c) of the Evidence Act 1995 and Briginshaw v Briginshaw (1938) 60 CLR 336.

19                  Secondly, Mr Smith referred to the magistrate’s statement that s 474 of the Migration Act “gives the Tribunal extraordinary rights”, carrying “extraordinary responsibilities and obligations”.  He said this statement was inconsistent with the High Court’s later decision in Plaintiff S 157/2002 and that Raphael FM erred “in finding that the enactment of s 474 somehow restricted the notion of bona fide attempt to exercise power”.

20                  In relation to the comment of Lord Bridge, Mr Smith said “the profound consequences of the Tribunal’s decision may be borne in mind in determining the question of good faith”; but “care must be taken not to allow that circumstance in any way to unbalance the other circumstances to which regard must be had”.  He said those circumstances included the fact that the relevant decision is one of administrative nature “so that the statement of reasons of that decision-maker must not be anxiously scrutinized with an eye attuned to the perception of error”.

21                  Mr Smith went on to submit the Tribunal acted in good faith.  He said:

“There are two general answers to the respondent’s claims, and to the findings of the Federal Magistrate: first, the highest at which any of the claims may be put is that the Tribunal simply misstated what took place at the hearing, in other words, that it made errors of fact.  Second, a number of those so-called errors of fact were not found by the Federal Magistrate to have been unavailable on the material but rather it was found that his Honour preferred the submission of the respondent to the way in which the Tribunal stated them.  Further, contrary to the Federal Magistrate’s finding at paragraph 12, there were not many errors which contributed to the decision made by the Tribunal.”

22                  Mr Smith said:

“A contradiction in the respondent’s claims formed the central platform of the Tribunal’s decision.  That is that the respondent claimed that he would be killed in Iran without doubt if he were to return but also claimed that he had been twice arrested, tortured and detained by reason of having converted to Christianity and then being released …  There can be no doubt that those two claims do not sit comfortably together.  After all, the respondent has twice fallen into the hands of the authorities, according to his claims, and twice escaped what he believes is his certain fate.  Once that central platform is accepted as being reasonable (it is not necessary to be at the conclusion to which the Court would come) the whole of the respondent’s case fell away.

While it may be accepted that the Tribunal in its statement of reasons misstated in several instances what occurred at the hearing, those matters were neither so serious nor so recurrent as to warrant the grave finding that the Tribunal did not make an honest attempt to exercise its power.  What in fact occurred was that the Tribunal formed a view as to the inconsistency of the respondent’s claims before the hearing, put its concerns about the inconsistencies to the respondent, listened to his explanations for the inconsistencies, but simply was not convinced by those explanations.”

The respondent’s submissions

23                  In responding to these submissions, Mr Karp said:

“It may be accepted that a finding of lack of good faith is not to be made lightly, and that the circumstances in which such a finding is made are likely to be rare and extreme.  This does not and cannot prevent such findings being made in an appropriate case, and it is submitted that this is an appropriate case.  The standard of proof is of course the civil standard.  Although the Court’s ‘reasonable satisfaction’ that an allegation is made out cannot be established independently of the nature and consequence of the facts to be proved …, there cannot be any presumption of regularity.  Nor should the Court require persuasion to a degree that in effect reaches that of the criminal standard.

The Tribunal’s errors here are not simply regrettable mistakes of fact.  I submit that the number and nature of these ‘errors’ compels the conclusion that there was a substantial failure by the Tribunal to accurately render and consider the evidence given by the respondent.  In place of a substantial part of that evidence the Tribunal substituted fiction, with the result that the decision itself was based as much on fiction as on fact.  There is simply no explanation for the reference to and reliance upon non existent questions and answers, and the misstatement of claims, other than that this Tribunal did not even try to get it right!”

24                  Mr Karp argued Raphael FM was correct in saying, at para 12 of his reasons, that, if the Tribunal forgot what questions it asked and what responses were given by the applicant, “by not … playing the tape … it was acting with reckless indifference to the effect of its forgetfulness upon the decision”.

25                  Mr Karp submitted that an “administrative decision maker whose decisions rest on his or her state of satisfaction commits jurisdictional error if he or she does not act in good faith”.  He cited a statement by Gibbs J in Buck v Bavone (1976) 135 CLR 110 at 118-119 that was approved in Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 275-276.

26                  Mr Karp noted that good faith is related to intent; however, as was said in SCAZ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 1377, “… reckless indifference can be the equivalent of intent”.

27                  Mr Karp suggested the nature and scale of the Tribunal’s errors in this case demonstrated, at the very least, recklessness in the exercise of power.

28                  Pursuant to the notice of contention filed by his client, Mr Karp repeated the first argument he had put to Raphael FM.  He submitted that, having regard to the nature of the Tribunal’s errors, and that they were all adverse to the applicant, “the Tribunal’s conduct, seen cumulatively, amounts to a concerted and dishonest attempt to impugn the respondent’s credit”.

Conclusions

29                  The scheme of the Migration Act is to leave to the Tribunal the task of determining the facts of the case.  It is important that members of the Federal Magistrates Court of Australia and members of this Court, who are called upon to undertake judicial review of a case, avoid substituting their own view of the facts of the case for those found by the Tribunal.  It is not to the point that a magistrate or judge might think that a particular factual finding of the Tribunal, or even a number of its findings, are of dubious merit or illogical.

30                  Nonetheless, there are occasions when it will be necessary for a court to look at the evidence adduced to the Tribunal and the Tribunal’s factual findings, in order to assess the availability, in the particular case, of a ground of review that is open to a party.  I accept Mr Karp’s submission that a decision-maker who fails to act in good faith commits jurisdictional error.  That was made clear by Gibbs J in Buck v Bavone.  Whether the proposition be put in that form or in terms of the Hickman exception, it is clearly open to an aggrieved party to obtain judicial review, and have the Tribunal’s decision set aside, if he or she can demonstrate lack of good faith.

31                  In SBBS the Full Court (Tamberlin, Mansfield and Jacobson JJ) summarised the principles that apply to an allegation of bad faith.  Omitting citations of authority, their Honours said:

“First, an allegation of bad faith is a serious matter involving personal fault on the part of the decision maker.  Second, the allegation is not to be lightly made and must be clearly alleged and proved.  Third, there are many ways in which bad faith can occur and it is not possible to give a comprehensive definition.   Fourth, the presence or absence of honesty will often be crucial; …

The fifth proposition is that the circumstances in which the Court will find an administrative decision maker had not acted in good faith are rare and extreme.  This is especially so where all that the applicant relies upon is the written reasons for the decision under review; ...

Sixth, mere error or irrationality does not of itself demonstrate lack of good faith; ...  Bad faith is not to be found simply because of poor decision making.  It is a large step to jump from a decision involving errors of fact and law to a finding that the decision maker did not undertake its task in a way which involves personal criticism; ... 

Seventh, errors of fact or law and illogicality will not demonstrate bad faith in the absence of other circumstances which show capriciousness; …

Eighth, the Court must make a decision as to whether or not bad faith is shown by inference from what the Tribunal has done or failed to do and from the extent to which the reasons disclose how the Tribunal approached its task; ….

Ninth, it is not necessary to demonstrate that the decision maker knew the decision was wrong.  It is sufficient to demonstrate recklessness in the exercise of the power; …”

32                  I accept this summary of principles.  It is appropriate for me to apply it to the resolution of this case.  In doing so, it is important to make a distinction that may have been overlooked in the submissions made to me by Mr Smith.

33                  If the position in the present case was that the Tribunal member had merely made findings of fact that Raphael FM thought to be incorrect or illogical, that would not have justified his order setting aside the Tribunal’s decision.  If the magistrate had taken that course, he would have usurped the Tribunal’s role as final determiner of the facts.  However, the magistrate did not set aside the Tribunal’s decision because he disagreed with its factual conclusions, or any of them, but because of the manner in which the Tribunal undertook its fact finding function.  His decision was based, not upon a disagreement about the facts of the case, but upon his categorisation of the Tribunal’s conduct.  That is consistent with the generally accepted notion of good faith, which is concerned with process rather than outcome.

34                  As it seems to me, the critical question in this case is whether the magistrate was justified in holding that the Tribunal acted recklessly in the exercise of its power.  Were the Tribunal’s erroneous statements about the applicant’s evidence of such significance as to support an inference of recklessness, and therefore bad faith?  Not every misstatement of evidence will support such an inference.  Even a careful decision-maker may err in his or her account of the evidence.   Bad faith is not to be readily inferred.  But if a material misstatement of evidence is sufficiently egregious, or the number of significant errors is sufficiently great, a reviewing court may be compelled to infer that the decision-maker has set out deliberately to distort the evidence or (more likely) has carried out his or her duties in a reckless manner.

35                  Raphael FM appreciated the issue before him was one of degree.  That is why he analysed each of the claimed errors and evaluated their significance.  I have considered his analysis and evaluation and have read the relevant portions of the transcript of evidence given to the Tribunal.  I agree with the magistrate’s conclusion.  I see no reason to attribute deliberate dishonesty to the Tribunal member.  Like Raphael FM, I think the likely explanation of the misstatements is that, by the time the Tribunal member set about writing his reasons, many months had elapsed.  He relied on his memory of the applicant’s evidence.  That it proved faulty is not surprising.  What is surprising is that the Tribunal member apparently failed to check his recollection of the applicant’s evidence against either the tape or a transcript of the hearing.  This might not have mattered if the member had decided to accept the applicant as a witness of truth and to accept the thrust of the claims he made.  But it did matter if the Tribunal member was minded to disbelieve him, and reject his claims, because of the detail of his evidence.  If the Tribunal member was so minded, it was reckless of him to omit to confirm the accuracy of his recollection of the evidence.

36                  I need not deal with all the misstatements.  It is sufficient to note some of them.  In so doing, I am not making any findings of fact, or disagreeing with any factual finding made by the Tribunal.  I am concerned only with the question whether it can properly be said that the Tribunal failed to apply itself in a bona fide manner to its obligation to make findings about the facts of the case; including, as a necessary incident, findings as to the applicant’s credibility.

37                  Central elements of the applicant’s claim to the Tribunal were:

(i)                  he became a Christian while still in Iran;

(ii)                he practised his Christian religion in Iran, although in a low-key way; and

(iii)               he was arrested, detained and tortured because of his Christian belief and practice.

38                  The applicant did not offer to the Tribunal any independent evidence that was capable of supporting any of these claims.  His case depended entirely upon his own evidence; so his credibility was a matter of extreme importance.  And the Tribunal found the applicant not to be credible, in material respects.  In para 56 of his reasons, under the heading “Findings and Reasons”, the Tribunal member said:

“While I accept some aspects of the applicant’s evidence, I am of the view that in respect of most other aspects of his evidence he was general and vague, and that his evidence was inconsistent, contradictory and implausible.  I consider that overall the applicant’s evidence was not reliable.  I am of the view that he fabricated most aspects of his claims in an attempt to create for himself the profile of a refugee.”

39                  In an understandable attempt to evaluate the applicant’s claims, the Tribunal member put to him a number of questions about his Iranian experience.  In answer to question 99, the applicant told the Tribunal:

“What I have experienced and what my experiences – what I’ve learned through experience from my own country is that they never try to do something so publicly, they never – they never publicise about it and I have evangelised many people including my own father, my family, my friends and what they tend to do is to find – to wait and find later opportunities, other chances to have stronger evidence and what they’re after and what they’re saying is that you’re in contact with others, meaning other foreign countries.”  (emphasis added)

40                  In para 34 of his reasons, the Tribunal member said;

“The applicant claimed that he would be definitely killed if he returned to Iran because of his problems; he had changed religion and was considered mortad or apostate.  He claimed that he had been detained, tortured and suffered harassment.  He claimed that he had contact with others in other cities and that the authorities created problems.  It was put to him that no one had been killed in Iran for being an apostate in many years.  He disagreed, and claimed that he will be killed.”  (emphasis added)

41                  It will be noted the applicant’s evidence was that others (presumably his accusers) were saying he was in contact with people in foreign countries, whereas the Tribunal attributed the claim of contact with others to the applicant himself.  The importance of the difference is pointed up by the following comment, in that part of the member’s reasons that is headed “Findings and Reasons” (at para 57):

“The applicant was asked about his claim that he would be killed for being mortad or apostate if he returned to Iran.  It was put to him how that could be so as he had already, so he claimed, confessed to the Iranian authorities that he was an apostate, had evangelised others and was the leader of an international conspiracy of Christians to overthrow the Iranian regime.  He attempted to resile from those earlier claims, saying that it was what happened to him, that he never did anything publicly, that he only evangelised his own family and that they (presumably the authorities) were waiting for stronger evidence against him.” 

42                  As will be apparent, the position to which the applicant “resiled” was in fact the statement he had made in his evidence.  Although the applicant agreed (in answer to question 102) that, in April 1999, he had signed a statement confessing that he was an apostate and had participated in a conspiracy to overthrow the government, he had previously stated (in answer to question 96) that he was forced to sign this statement during a period of detention and interrogation.  After he came to Australia, the applicant never made a claim that he was engaged in an international conspiracy to overthrow the Iranian regime.

43                  The importance of this misstatement of the applicant’s evidence is indicated by the fact that it is the first example cited by the Tribunal member in support of his conclusion that the evidence of the applicant was “inconsistent, contradictory and implausible”.

44                  In para 38 of his reasons, the Tribunal member said:

“He was asked if it was his evidence that confessing to the Komiteh that he was a mortad and had evangelised Muslims meant that he would not go to court and be killed as a mortad and proselytiser.  He had nothing to say.”

45                  The second of these two sentences suggests acknowledgement of error.  However, as Mr Smith concedes, the stated question was never put.  Mr Smith offered the following comment:

“There is, and can be, no direct evidence as to why the Tribunal set out a question that was not asked, however, there is available an innocent explanation just as readily as a sinister one.  That is, that the Tribunal had intended to ask such a question and perhaps had notes of that question without anything in reply (which would explain why it thought that the applicant had nothing to say to it) but that with the passage of time, it failed to realise that there was nothing written because there in fact had been no question.”

46                  The explanation may be innocent, in the sense that it gives no support to a suggestion of deliberate distortion of the evidence by the Tribunal member.  But it tends to support the suggestion of recklessness.

47                  Similarly, in para 39, the Tribunal member said:

“The applicant was asked about his claim of becoming like a son to a Christian family.  He was asked how that came about.  He claimed that he went to Teheran and met his neighbours.  He was asked for specific details, but he was unable or unwilling to do so.”

48                  In fact, as Mr Smith again concedes, the applicant was never asked for specific details as to how he met his neighbours.  The exchange on the subject between the Tribunal member and the applicant (questions 108 and 109) was as follows:

“Q.      You say that you became friends with a Christian family and you became like a son to them?

A.        Yes

Q.        How did that come about?

A.        When I moved to Youssefaba then I met my neighbours, Mr Sepi, Mohammed Sepi, and Mrs Shahabi and their daughters.”

49                  The member then moved to a different topic, the applicant’s church attendances.

50                  In the same para 39, the Tribunal member said:  “He was asked if it was his evidence that he had gone to the church for one year and he said yes.  It was put to him that he had attended the church only about 6 times.  He had nothing to say.”

51                  The applicant did say that he went to church for about a year.  As is conceded by Mr Smith, it was never put to him that he had attended church only about 6 times.

52                  There are a number of other occasions, detailed by Raphael FM, in which the Tribunal said a matter was put to the applicant when it was not.

53                  In para 40 of his reasons, the Tribunal member said:

“The applicant was asked what he did at the church.  He claimed that he attended the sermon session with Ms Shahabi.  He was asked what he did there, and he said bible studies.  He was unable or unwilling to give details, and appeared reluctant to be more than general.  He was asked what did bible studies entail.  He claimed they studied the bible.  He was unable or unwilling to give any details.”

54                  In fact the member asked two questions about this topic.  By question 123, he asked “what did you do when you went to church?”  The applicant replied:

“Services, sermons, the sermons sessions, don’t know what that, and that’s – they’re the sessions that Mrs Shahabi introduced to me and they were very interesting and Mr Edward was conducting them.”

55                  The following question and answer were as follows:

“Q.      What did you do there though?  Did you study the Bible, did you listen to sermons, did you discuss Christianity?  What did you do there?

A.        They were praising for the sermons and also one section of Bible was selected, one verse of it, and that would be discussed and be spoken about.”

The member then passed to another topic.

56                  An important error of the Tribunal relates to the time when the applicant claimed to have been evangelising.  The relevant evidence is at question 143 to 145:

“Q.      Now, you say that you confessed to evangelising Moslems when you were in Iran and that you gave them a list of those people whom you did so to.  Can you explain to me just how you did that?  How would you evangelise someone in Iran?

A.        Well, I evangelised my own brother, my sister, my parents and my close friends and when I say friends I don’t mean colleagues or just people who I knew, I mean close friends which I knew and it’s because I knew that evangelising is difficult and it’s a dangerous thing to do in Iran.

Q.        Did any of them convert to Christianity?

A.        And also my aunt, my auntie.  My sister is a believer but she can’t go to any churches and my auntie which I’ve spoken to her from the beginning on many occasions, she’s also a believer and at the moment I’m working on my brother.

Q.        How are you doing that since your brother is in Iran?

A.        Every time that I have a phone contact with him even if it’s two words that I can say, that I have to say, I still do that because I, I believe now, I’m a believer now and I believe that even if it’s two words I still have to say those words and to convey them, and every time that I talk with him, every time I talk with him he points out, he says to be careful, he says that there are sort of – it’s an expression – that there are people who are better than us, meaning that there could be people listening to us, you know, the government listening to us and it might not be interesting for you but it’s just interesting to say that on Sundays every time I speak – I have telephone conversation like with my auntie she says that Did you go to the suit today, meaning Were you wearing the suit to go to, you know, to church she means but she can’t say or she says that Pray for us as well when you go there and things like that, she says them because she can’t say it clearly.”

57                  Mystifyingly, the member ignored the fact that the applicant’s first answer responded to a question that includes the limitation “when you were in Iran”.  In para 44 of his reasons he said:

“The applicant was asked how he went about evangelising some one in Iran.  He claimed that it was his brothers, parents and close friends because it was dangerous in Iran.  He was asked if any one converted.  He claimed that he was a believer, but he could not go to the church, that his aunt was a believer, and that he worked on his brother in Iran.  It became apparent that his claim of evangelising was speaking to his family on the phone from Australia.  He claimed that every times he contacts his brother by phone he tells him to believe, but that the phones are listened to.  He was asked if he had been baptised in Iran, and he said no.”

58                  I need not go on.  It is apparent the Tribunal member made no real attempt to establish and analyse the evidence given to him by the applicant.  Even on critical issues, he did not check the accuracy of his recollection.  In the result, he impugned the applicant’s credibility by reference to his own faulty recollection of his evidence.

59                  Before parting with the matter I should say something about that part of Mr Smith’s submission in which he asserted a contradiction in the applicant’s claim (see para 22 above); the contradiction being that the applicant said “he would be killed in Iran without doubt if he were to return but also claimed that he had been twice arrested, tortured and detained by reason of having been converted to Christianity and then released”.  There may indeed be some inconsistency between these claims, although it would be necessary to consider all the circumstances before coming to a definite conclusion about that.  However, the Tribunal was not sitting as an examiner in logic.  The fact that the applicant may have exaggerated his likely punishment, if returned to Iran, did not absolve the Tribunal from making its own assessment about the likelihood of persecution.  The applicant claimed to have twice been detained and tortured in Iran, by reason of his Christian faith.  If the Tribunal accepted the truth of those statements, it needed then to consider whether this would be likely to happen again, if the applicant were returned to Iran; and, if so, whether this amounted to persecution for a Convention reason.

Disposition

60                  The appeal should be dismissed with costs.  The order of the magistrate will stand.  The matter will need to be reconsidered by the Tribunal.  Having regard to the history of the matter, I presume the President of the Tribunal will direct that the reconsideration be undertaken by a different member of the Tribunal.

Associate:

Dated:              20 May 2003