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Federal Court of Australia |
Last Updated: 2 February 2004
FEDERAL COURT OF AUSTRALIA
NADN v Minister for
Immigration & Multicultural & Indigenous Affairs
[2004] FCA
15
MIGRATION – protection visa –
whether Refugee Review Tribunal fell into jurisdictional error in deciding that
appellant did not
hold a well-founded fear of persecution for reason of religion
– whether Tribunal failed to comply with s 424A(1) of the
Migration Act 1958 (Cth) when, relying upon independent country
information, it rejected part of the appellant’s claims – whether
Tribunal
had failed to comply with common law requirements of procedural
fairness – whether such errors were fundamental enough to be
jurisdictional errors – whether Tribunal had misled the appellant –
whether the Tribunal had acted in such a manner as
to give rise to apprehended
bias – whether the Tribunal decision was unreasonable in the
administrative law sense.
Migration Act 1958 (Cth),
ss 91R(1), 424A(1) and (3)
Plaintiff S157/2002 v Commonwealth of
Australia [2003] HCA 2 applied
Minister for Immigration & Ethnic
Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 referred to
Minister for Immigration
& Multicultural & Indigenous Affairs v Awan [2003] FCAFC 140
referred to
Minister for Immigration & Multicultural Affairs v Al
Shamry [2001] FCA 919; (2001) 110 FCR 27 cited
SAAY v Minister for Immigration &
Multicultural & Indigenous Affairs [2002] FCAFC 393 cited
Tin v
Minister for Immigration & Multicultural Affairs [2000] FCA 1109
WAGP of 2002 v Minister for Immigration & Multicultural &
Indigenous Affairs [2002] FCAFC 266 referred to
Wang v Minister for
Immigration & Multicultural Affairs [2000] FCA 1599; (2000) 179 ALR 1 distinguished
SGKB v Minister for Immigration & Multicultural & Indigenous
Affairs [2003] FCAFC 44 distinguished
WAHI v Minister for Immigration
& Multicultural & Indigenous Affairs [2003] FCA 908 distinguished
SAAP v Minister for Immigration & Multicultural & Indigenous
Affairs [2002] FCA 577 referred to
NADN v MINISTER FOR
IMMIGRATION & MULTICULTURAL &
INDIGENOUS
AFFAIRS
W95 of 2003
CARR J
19
JANUARY 2004
PERTH
|
NADN
Appellant |
|
|
AND:
|
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS
AFFAIRS
Respondent |
|
DATE OF ORDER:
|
|
|
WHERE MADE:
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THE COURT ORDERS
THAT:
1. The appeal be allowed.
2. The orders of the Federal Magistrates Court made on 15 April 2003 be
set aside.
3. An order in the nature of certiorari be issued, directed to the Refugee Review Tribunal, quashing its decision given on 15 February 2002, affirming the decision of the respondent’s delegate not to grant the appellant a protection visa.
4. An order in the nature of mandamus be issued, directing the Refugee Review Tribunal to re-hear and determine the appellant’s application for review according to law.
Note: Settlement and entry of orders is dealt with
in Order 36 of the Federal Court Rules.
|
AND:
|
REASONS FOR JUDGMENT
INTRODUCTION
1 This is an appeal from a decision of a Federal Magistrate given on 15 April 2003. His Honour’s decision was to dismiss the appellant’s application for an order of review of a decision by the Refugee Review Tribunal, made on 15 February 2002, to affirm a decision of a delegate of the respondent not to grant the appellant a protection visa. The Chief Justice, acting under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) directed that the appeal be heard by a single judge.
FACTUAL AND PROCEDURAL BACKGROUND
2 The appellant is a citizen of Iran, born on 23 September 1974. He arrived, without a visa or passport, in Australia on 15 March 2001. On 3 April 2001, he was interviewed by an officer of the respondent’s Department ("the entry interview").
3 On 9 October 2001 the applicant applied for a protection visa. On 12 November 2001 a delegate of the respondent refused to grant that visa. On 19 November 2001 the appellant sought review of that decision by the Refugee Review Tribunal which conducted a hearing on 16 January 2002.
THE APPLICANT’S CLAIMS
4 At the entry interview the appellant identified himself as a Shi’ite Muslim. He claimed to have been born in Teheran, and that his last address had been in that city. He did not give any other previous addresses. The applicant gave three reasons for leaving Iran. They were, first, that his life was in danger, secondly, that he wanted "freedom of thought" and thirdly that he wanted to pursue further education. There is then the following record of questions and answers:
‘Why was your life in danger?
I don’t belong to any political group but my brother is always fighting for his beliefs. When I got to university, I was known because of my brother’s activities. I participated in a free debate and I was transferred to another university.
Why were you transferred to another university?
Because of the difference of opinion.
Did anything happen to you then?
After the incident one of my relatives was arrested in connection with a murder in Iraq.
What did that have to do with you?
The disciplinary committee of the university took me somewhere and released me and told me if anything else happened you will be held responsible.
Were you arrested again?
Yes once more.
By whom?
Same committee as before.
What for?
Because of the religious discussions.
How long were you held?
One week.
What happened while you were arrested?
Psychologically torturing me.
How?
They beat me and told me they would expel me.
That’s not psychological – were you physically tortured?
Yes, I was beaten physically and in the name of Islam they enforced the law.’
5 In response to the question whether the appellant had any reasons for not wishing to return to Iran he responded:
‘I can’t go back because I am afraid of any Iranian because of the problem I have. My cousin Yusef is in the Mujahideen and my relationship caused a problem.
6 Among the appellant’s personal effects, the officials of the respondent’s Department found a prayer sheet from the Al Majaf Mosque. Al Majaf is a city of pilgrimage, located in Iraq. The prayer sheet contains Arabic and Farsi text.
7 On 24 August 2001, the appellant sent a letter to the respondent’s Department in which he stated that he could not go back to Iran because he had changed his religion and was "really Christian now". This was the first mention by the appellant of the matter of religion. That letter and another, undated, letter in similar vein, appear to have been sent together to the Department on 3 September 2001, i.e. about five weeks before the appellant applied for a protection visa.
8 At the stage when that application was pending before the delegate, the appellant explained that the Arabic/Farsi prayer sheet had been given to him by a friend in Indonesia to protect him and that, out of courtesy to the friend, he had not told him that he was a Christian.
9 In his application for a protection visa the appellant claimed that he had had difficulty obtaining a passport because he was "wanted by the authorities". He stated that since arriving in Australia he had converted to Christianity. The appellant told the delegate that he had become a Catholic and later submitted a certificate stating that he had completed the "Word of Life" bible correspondence course.
10 In a statement accompanying his application the appellant provided the following new information about his education and experiences at university level. The appellant stated that he decided to start a discussion group which discussed current affairs in Iran, including topics such as religion and politics. In those discussions they criticised the regime and fundamentalists. In April or May 1999 his group had permission from the university to debate about Hejab. The discussion included other people outside the normal group. The appellant was chosen as the speaker. The debate continued for an hour until the university staff cancelled it. A few hours later he was arrested by a member of the Etelaat, blindfolded and taken to a building. He was accused of discrediting and disrespecting Islam, detained for one week during which he was severely beaten and then forced to sign an undertaking that he would not take part in any more discussion groups after which he was released.
11 After completing his exams, he was sent to a much smaller campus at Tafresh. He was warned not to start any further discussion groups. Despite these warnings he organised a discussion group in the evenings.
12 In December 1999 or January 2000 he was again arrested by the Etelaat. During interrogation he found out that his interrogators knew about two of his cousins who were members of the Mujahideen. He was detained on this occasion for two weeks and continually beaten.
13 Two months after this incident his house was searched and books and tapes were missing. In April or May 2000 he engaged in a discussion before his class about the state of the Iranian economy and how it was mismanaged by the regime. The next day he was expelled.
14 He went back to Teheran (apparently the university was some distance from that city). Two weeks after returning to Teheran, at the invitation of a friend of his in Tafresh, the appellant went back there and gave a speech critical of Islam. After giving that speech, the appellant went back to Teheran and began making and distributing flyers about that speech. He distributed those flyers in Teheran and four other places. It was at this time, so the appellant claimed, that he had taken an interest in Christianity as he was "fed up" with Islam.
15 In late October 2000, according to the appellant’s claims, he was invited by a student at Arak University to give a speech. He gave the speech outside the university campus and accepted an invitation to stay for a few days. A few days later he telephoned his family and was informed that their house had been searched by plain clothes officers of the Etelaat who had found the flyers which he had been distributing. They had beaten his brother and threatened his family to tell them of the appellant’s whereabouts. The appellant claimed that he stayed in Arak for a month during which he contacted his family who told him that the Etelaat had continued to come to their house and look for him on a regular basis. On the suggestion of his father, he left the country with the help of a smuggler.
16 Since arriving in Australia the appellant claimed that he had also been interested in Christianity and had requested information about the religion. He had changed his name to Daniel. On 25 December 2001 the appellant was baptised as a Christian in the Catholic faith.
17 The appellant made similar claims before both the delegate and the Refugee Review Tribunal.
THE TRIBUNAL’S FINDINGS AND REASONS
18 The Tribunal, despite expressing some doubts, accepted that the appellant had been a student at Azad University from 1998 to 2000. However, it said that it could not accept as reliable or credible the appellant’s description of his so-called discussion group. The Tribunal said that the appellant gave vague, tentative, implausible and unpersuasive evidence as to its charter, its strategies, size, lack of networks and, in the context of its central concerns, its all-male constituency. The Tribunal said that it did not accept that the appellant was ever involved in such a group, let alone that he had led one. The Tribunal gave, as another reason for this conclusion, its view that on this subject as in other key parts of his evidence, the appellant displayed what the Tribunal described as a marked tendency to introduce what he portrayed as central issues in his case, that were plainly denied earlier on, and that this trend in his evidence-giving went strongly against him. In short, the Tribunal rejected the appellant’s claims to have engaged in political activities.
19 In relation to the appellant’s religious claims, the Tribunal did not accept that the appellant proceeded towards baptism into the Catholic Church in good faith. The Tribunal found that the appellant had given highly contradictory reasons for failing to bring his religious claims to the attention of Australian authorities sooner than he did. The Tribunal went further and said this:
‘Taking all the Applicant’s evidence into consideration, and notwithstanding letters from religious persons attesting to his perceived sincerity the Tribunal concludes that the Applicant’s so-called "conversion" is all a big fraud. In spite of his claims to the contrary, the Tribunal finds that the Applicant has contrived a disingenuous course of religious conversion much in the same way as he has fabricated his history of political dissent at university, and of illegal departure from Iran. The Tribunal concludes that he has done all these things for the purpose of fashioning a claim to refugee status in Australia.
S 91R of the Act obliges the decision-maker to disregard all actions taken by an applicant in Australia that are found to have been undertaken purely for the purposes of strengthening a claim to refugee status within the meaning of the Convention. The present Applicant’s claims based on religious conversion are accordingly disregarded.
The Tribunal is very confident that if anyone in Iran tried to denounce the Applicant as a person suspected of trying to convert to Christianity in Australia, it would be very hard for the accusation to stick, unless the Applicant led his accusers into a church and took communion in front of them, in which case, it has to be said, his martyrdom would be his own business. The Tribunal is so strongly struck by the Applicant’s lack of good faith that it is extremely confident he would abandon his so-called newfound Christianity back in Iran and lose no sleep over it at all, denying it as he has denied many facts in the present application, to suit the occasion.
* Supposing, however, that the Applicant decides that he grows to like being a member of the community of Catholics, for one reason or another, if he has not done so already, the Tribunal should look at his prospects for survival back in Iran. In doing so it is guided by four significant factors: firstly, there is no reason to assume the Applicant is or would be evangelical, as his religious knowledge is weak and he has shown that he would rather depart Iran than stay on to preach to others; secondly, the church with which Catholicism most closely corresponds in Iran strongly discourages evangelism; thirdly the independent evidence clearly states that, although there is a nominal death penalty for apostasy, it has rarely been brought upon anyone, partly because the state evidently takes no interest in converts who go about their new lives discreetly; and fourthly, the Applicant himself stated at one stage of his evidence-giving that he would face no persecution if he remained discreet. For all these reasons the Tribunal concludes that the Applicant would not face a real chance of persecution in Iran for reasons of being a Catholic.’
* [I shall refer to this last paragraph as "the
Additional Paragraph"].
THE DECISION AT FIRST INSTANCE
20 The appellant was not represented in the proceedings before the Federal Magistrates Court. His grounds of review were as follows:
‘(a) To allow the decision to stand would be wrong, and would deny the applicant a visa;
(b) The decision involves an error in law. There was no jurisdiction to make the decision.
(c) The Migration Act did not permit the making of the decision.’
21 His Honour examined the Tribunal’s reasons in some detail and set out quite voluminous extracts.
22 His Honour correctly observed that, under the principles explained in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2, he had jurisdiction, notwithstanding the privative clause provisions of the Migration Act, to review the Tribunal’s decision for jurisdictional error including error arising by reason of a denial of procedural fairness. His Honour said that after re-reading the Tribunal’s decision carefully and somewhat anxiously, he was unable to identify any basis upon which the Tribunal’s decision could be interfered with.
23 His Honour then applied the Hickman principles [R v Hickman; Ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598] and held that the Tribunal had acted in good faith, its decision was reasonably capable of reference to the power given to it, its decision related to the subject matter of the legislation and there could be no suggestion that any constitutional limits were exceeded.
24 His Honour had regard to the appellant’s complaints that there were mistakes or errors made by the interpreter in his initial interview, but expressed the opinion that such inaccuracies could not realistically have had any impact whatsoever on the eventual outcome of the proceedings.
25 The appellant’s complaint that the Tribunal focussed unduly or improperly on his conversion to Christianity was, so it seemed to his Honour, a submission to the effect that the Tribunal was biased in reaching its decision and therefore did not make a bona fide attempt to exercise its power. His Honour concluded that such an assertion could not be sustained in the circumstances of the case. The learned Magistrate concluded as follows:
‘In my opinion, it has not been established that the RRT made any relevant error of law, that it failed to take into account relevant considerations or that there was some other jurisdictional error. The RRT’s reasons reveal that it did consider the merits of the application. It made findings that were reasonably open to it on the material before it based on credibility findings and the assessment of the applicant’s claims.’
THE APPEAL
26 There were four grounds of appeal in the amended notice of appeal. In summary, Ground 1 asserted jurisdictional error on the Tribunal’s part in failing to apply the correct test in dealing with the issue of whether the appellant held a well-founded fear of persecution by reason of his religion. The second ground alleged a failure on the Tribunal’s part to comply with its obligations under s 424A of the Migration Act 1958 (Cth) ("the Act"). In the third ground the appellant contended that the Tribunal had fallen into jurisdictional error by failing to comply with the common law requirements of procedural fairness. Finally, in Ground 4, the appellant asserted jurisdictional error based on Wednesbury unreasonableness. I shall deal with each of the grounds of appeal in that sequence.
Ground 1
27 The appellant particularised his assertion that the Tribunal had failed to ask itself the correct question or apply the correct test in dealing with the issue about whether he held a well-founded fear of persecution for the reason of his religion as follows:
(a) The Tribunal had approached this issue on the basis that if the appellant chose to practice his Christian faith openly upon return to Iran, any persecution that he would face as a result would be on account of his own actions, rather than on account of his religion. The correct approach was for the Tribunal to determine whether the appellant could expect to face persecution for the practice of his Christian beliefs in the way in which he wished to practice them if returned to Iran;
(b) The Tribunal considered only the consequences of the appellant declaring his conversion or choosing to be evangelical in his practice of Christianity upon return to Iran and failed to consider the consequences if the Iranian authorities became aware of his conversion in some other way;
(c) The Tribunal failed to consider the seriousness of the consequences to the appellant in the event of his conversion becoming known to the Iranian authorities; it ought to have considered whether the mere possibility of a death sentence, regardless of how remote that possibility might be, could itself constitute persecution; and
(d) The Tribunal ought also to have considered whether discrimination against Christians in areas of employment, education, housing, marriage and the legal system could constitute persecution.
28 Mr C Beaton-Wells and Mr J J Serong of the Victorian Bar, acting on a pro bono publico basis, prepared extensive and detailed written submissions on behalf of the appellant. Mr Serong appeared for the appellant at the hearing of the appeal. Messrs Herbert Geer Rundle acted as the solicitors for the appellant in the appeal, also on a pro bono publico basis. The Court records its gratitude to those lawyers for the considerable amount of time and effort which they devoted to the appellant’s case.
29 The Appellant’s submissions in relation to Ground 1 were based on the assumption that the Tribunal "entertained sufficient doubt" about its conclusions, which I have set out at paragraph [19] above, and thus had to consider the potential consequences for the appellant if it were wrong in its assessment.
MY REASONING
30 Section 91R(3) of the Act provides as follows:
‘(3) 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 persons claimed to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.’
31 In my opinion, the Tribunal’s finding that the appellant’s so-called conversion was all a big fraud contrived for the purpose of fashioning a claim to refugee status in Australia obliged it, as a matter of law, to apply s 91R and disregard that conversion in so far as the conversion constituted conduct engaged in in Australia. Furthermore, in relation to the appellant’s claims to have been interested in Christianity before he left Iran, the Tribunal expressed its credibility conclusions so emphatically as to indicate that it had no doubt that the whole of the appellant’s religious claims were made fraudulently.
32 In my view, this was not a case of the type contemplated by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 576 where a Tribunal might be bound to consider whether its findings might be wrong.
33 In those circumstances its speculation in the Additional Paragraph about what might happen if the appellant were to grow to like being a member of a community of Catholics, should be regarded, in my view, as surplusage.
34 The appellant relied on a Full Court decision of this Court in Wang v Minister for Immigration and Multicultural Affairs [2000] FCA 1599; (2000) 179 ALR 1 as indicating that the Tribunal had fallen into jurisdictional error in two parts of its reasoning. The first (see pp 25-26 of its reasons) was some speculation about how a reasonable person might deal with the assertion by the appellant’s migration agent, in a letter dated 26 November 2001, that the appellant was likely to be outspoken about his conversion and to be evangelical if returned to Iran. One of the two ways in which the Tribunal said that a reasonable person might deal with that assertion was to accept the assertion at face value and that if the appellant on return to Iran were to "go on to evangelism, it would be his choice entirely". The second way, on the basis of the appellant’s emigration from Iran, would be to reject the assertion as baseless, inherently contradictory and illogical. At this stage of its reasoning the Tribunal did not choose which course to adopt. It was simply making an observation in the course of summarising various submissions made by the appellant during the course of his application for a protection visa.
35 But several pages later, in the section headed "Findings and Reasons", the Tribunal made a very clear finding which rejected the appellant’s assertion that he would publicly acknowledge a conversion to Christianity when it said:
‘The Tribunal is so strongly struck by the Applicant’s lack of good faith that it is extremely confident he would abandon his so-called newfound Christianity back in Iran and lose no sleep over it at all, denying it as he has denied many facts in the present application, to suit the occasion.’
36 The present case is very different, in my view, from the circumstances in Wang where there was an "implicit finding" (see Wilcox J at [21] and [27]) that Mr Wang would, if returned to China, continue (in accordance with his expressed intention) to practise his religion as a member of the congregation of an unregistered church.
37 If the Tribunal in this matter had found the facts differently, then its observations about the appellant flaunting his alleged conversion to the Iranian authorities being "his own business" would most probably have been in error. But it did not so find the facts. Its decision was based on a completely opposite finding of fact, i.e. that he would quite happily abandon his pretence of having converted to Christianity. That factual finding also clearly distinguishes the circumstances of this matter from those considered by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71.
38 The same circumstance (how the Tribunal found the facts) completely undermines the appellant’s reliance on SGKB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 44 and WAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 908 as the basis for demonstrating the three further alleged jurisdictional errors which were identified in his submissions. In each of those cases the Tribunal accepted that the applicant for a protection visa had converted to Christianity.
39 In my view, the appellant has not made out the jurisdictional errors for which it contended in Ground 1. The very strong credibility findings against the appellant made it inevitable that his claims to refugee status were bound to fail, to the extent that they were based upon religious claims. In that regard, I think that it is important to note that the appellant stressed (see his statutory declarations of 15 January 2002 and 23 January 2002) that his application for a protection visa was not based on his conversion to Christianity and that the real reason for his departure from Iran was not in any way related to his Christian belief.
Ground 2 – Section 424A(1)
40 Section 424A relevantly provides as follows:
‘424A Applicant must be given certain information
(1) 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 a 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.
(2) . . .
(3) 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 other person is a member; or
(b that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.’
41 The appellant put his contention that the Tribunal had failed to comply with s 424A(1) of the Act on two bases. The first was that the Tribunal had relied on information provided by him regarding the circumstances in which he obtained a false passport and passed through the airport at Teheran. That information had been provided in his entry interview, his application for the protection visa, a submission made in support of that application, and at the interview with the respondent’s delegate. But at no stage, so it was contended, did the Tribunal give to the appellant particulars of this information, or ensure that the appellant understood why it was relevant to the review and invite him to comment on it.
42 The second failure to comply with s 424A(1) was said to be the Tribunal’s reliance on independent country information concerning security procedures at Iranian airports and the checks to which Iranians are subject in travelling in and out of Iran, as part of its reason for affirming the delegate’s decision. The Tribunal had not given the appellant particulars of this information, or ensured that he understood why it was relevant to the review or invited him to comment on it.
43 The appellant submitted that the information which was the subject of these obligations related to matters concerning his credibility which in turn was critical to the Tribunal’s decision.
MY REASONING
44 At pp 35 and 36 of its reasons the Tribunal rejected, on credibility grounds, the appellant’s claim ever to have been involved in the discussion group, let alone having led one. It also rejected his evidence of subsequent public protest and pamphlet dissemination. After giving its reasons for such rejection the Tribunal said this:
‘The Tribunal cannot accept that the person who "fled" Iran in January 2001 after being "detained" by Etelaat over political activities would be pamphleteering and accepting speaking engagements, and leaving copies of pamphlets at home for Etelaat to find, let alone while he was supposedly hiding, clean-shaven now, with friends. The Applicant’s evidence about beards and friends’ houses is dismissed as a whole lot of dissembling.
It is important to note at this stage that even if the Applicant had said, in his entry interview, that he did engage in political activities against the Iranian regime, the poor quality of his later evidence would still have undermined his overall position.’
45 The next two paragraphs of the Tribunal’s reasons read as follows:
‘The Tribunal dismisses as inconsistent and implausible the Applicant’s evidence of his claimed "escape" on a false Iraqi passport. He could not decide whether he engaged the people smuggler or had nothing to do with it. He changed his story from one where buying the passport was enough to get out of Iran to one about needing a person to smooth every step he took at the airport en route to his flight. The more detailed he tried to make his story the more seriously it clashed with what the Tribunal considered to be highly reliable information regarding the strictness of security procedures in Tehran’s international airport.
Since the Tribunal cannot accept as reliable any of the evidence regarding the Applicant’s "illegal" exit from Iran, it confidently concludes that he left legally. Were the Tribunal wrong about this, and it is confident that it is not, it would have to conclude on independent evidence cited earlier that illegal exit from Iran alone does not lead to a real chance of persecution, for it is punishable under laws of general application, if at all (DIMIA CIS file at CX 57510 refers). The Tribunal would also be highly confident that the Applicant would not face punishment back in Iran for reasons of being suspected of having made an asylum claim in Australia, even in the seemingly remote event that it were heard in Iran that he had made one based on "religious conversion".’
46 The authorities relating to s 424A, and its counterpart s 359A, were conveniently reviewed by Merkel J (with Gray and Marshall JJ agreeing) in Minister for Immigration and Multicultural and Indigenous Affairs v Awan [2003] FCAFC 140 in particular at pars [80]-[89]. I shall not, in these reasons, rehearse the principles which have been explained in those cases and in the other decisions to which I was referred in this appeal by counsel for each side.
47 I should note, for the record, that the respondent relied upon the exclusion provisions of s 424A(3)(a) in relation to the information about consequences in Iran for a person being found to have left the country illegally. At the hearing of the appeal, counsel for the appellant expressly abandoned that portion of Ground 2(b) which related to that matter. The respondent did not otherwise rely upon s 424A(3)(a). Whether the exemption provided by that sub-paragraph might otherwise apply was thus not in issue in this appeal.
48 In Ground 2(a) the appellant relied upon an alleged failure by the Tribunal to comply with s 424A in relation to information given by the appellant at his entry interview, and subsequently in support of his application for a protection visa at the stages before his application to the Tribunal for review of the decision of the respondent’s delegate.
49 It was common ground that the exception provided in s 424A(3)(b) does not apply to such information because the exception is limited to information which an applicant has provided for the purposes of his application for review by the Tribunal: see Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919; (2001) 110 FCR 27 at [17]- [20] and [34]-[41]; SAAY v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 393.
50 In my view, it would have been open to the Tribunal to make the credibility finding which it made in the first of the two paragraphs set out at paragraph [51] above without providing to the appellant particulars of the information supplied by him regarding the circumstances in which he obtained a false passport and passed through the airport at Teheran, but for its reliance on the independent information regarding the strictness of security procedures at Teheran’s international airport.
51 But for that reliance, I think that the Tribunal would have been entitled to reach its conclusion on the basis of the inconsistencies in the appellant’s evidence as the matter progressed – see Tin v Minister for Immigration and Multicultural Affairs [2000] FCA 1109 and WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 in particular at [27]-[31].
52 However, in my view, the Tribunal, as part of the reason for affirming the decision of the respondent’s delegate, relied upon what it described as "highly reliable information regarding the strictness of security procedures in Teheran’s international airport".
53 It can be seen that that information was contained in DFAT Country Information Report 61/00 which it set out at pp 9-10 of its reasons. At p 19 of its reasons the Tribunal referred to the changes in the appellant’s claims resulting in a claim that the smuggler escorted him through all the procedures at the airport and that that was how the authorities let him pass with a false passport. It then commented that it seemed difficult for it (the Tribunal) to conceive in light of the independent evidence, giving as an example DFAT Country Information Report 61/00, that that kind of operation could ever have been possible, let alone effective.
54 The respondent submitted that the information regarding the security procedures at Iranian airports was not information upon which the Tribunal based its decision. Counsel for the respondent argued that the Tribunal’s reasons showed that it was the conflict between the appellant’s evidence and the information regarding the strictness of security procedures at Teheran’s international airport to which the Tribunal had regard. I accept the appellant’s submission that this is not a real distinction.
55 The respondent submitted that the Tribunal had already rejected the appellant’s claims regarding his activities at University in 1999 and 2000, and it could not be established that the decision under review would not have been affirmed in the absence of this particular information.
56 In my opinion, it is not possible to sever that part of the Tribunal’s reasoning in which it expressed its disbelief of the appellant’s claimed activities at the University from its reasoning about whether the appellant left Iran illegally. I acknowledge that there is some weight in this severability submission. The Tribunal might quite possibly have been moving on to the potential problems of a person returning to Iran having left that country illegally.
57 But, in my opinion, these two paragraphs of the Tribunal’s reasons are inextricably linked to the question whether he was wanted by the authorities. If his claim to have departed Iran on a false Iraqi passport had been believed, then that would have been extremely relevant to his claims that he was being sought by the Iranian authorities. In my view, the information about security procedures at Teheran’s international airport was part of the reason for the Tribunal’s decision.
58 First, it was relevant to his claim to have been wanted by the Iranian authorities. I have acknowledged that the Tribunal’s reasons could be read, as the respondent submitted, as moving from that topic to another topic i.e. persecution by reason of illegal exit from Iran. However, it can also be seen as rounding off the Tribunal’s reasoning for rejecting the University-related claims which, on the appellant’s case, resulted in him being wanted by the authorities so that he had to use a false passport to leave the country.
59 Secondly, this finding was also relevant (as the appellant submitted) to his credibility which in turn was critical to the Tribunal’s decision. The roots of the finding extended very deeply into decision-making process.
60 The respondent relied upon the following obiter dicta in WAGP of 2002 at [36]:
‘Moreover, even if contrary to the conclusions set out above, the appellant were able to establish that one or more of the matters relied upon as constituting "information" was information for the purpose of s 424A(1), there would be no breach of that section unless the information was "the reason or a part of the reason" for the RRT’s decision. That means that the appellant must establish that, on a proper analysis of its reasons for decision, in the absence of that particular information, the decision under review would not have been affirmed: Minister for Immigration and Multicultural and Indigenous Affairs v Rajamanikkam [2002] HCA 32 at [58]. In the present case, it is not possible to arrive at that conclusion.’
61 With respect I agree completely with the first paragraph of the above observations. With equal respect, I think that the second sentence sets the bar too high. Rajamanikkam was not a s 424A case. The passage cited by the Full Court was concerned with the question whether a decision would or would not have been made without a particular factual finding i.e. whether the decision was "based" on the particular fact within the provisions of what was then s 476(4)(b).
62 In my view, the correct approach is that discussed by McHugh J in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at par [104], acknowledging, as I do, that that case involved non-statutory breach of the rules of natural justice. I do not think that the authorities to date require a court, when considering whether to refuse relief, to draw a distinction between common law requirements of natural justice and those which are imposed by statute.
63 Accordingly, having found the above breach by the Tribunal of the requirements of s 424A, I should refuse relief only if I am confident that the breach could not have affected the outcome.
64 I am not so confident.
65 At the hearing of the appeal the appellant tendered, without objection, an affidavit from his migration agent. The migration agent swore that he was born in Iran and had arrived in Australia in 1984. He had returned to Iran on three occasions since then, was familiar with the state of affairs in that country. He expressed the view that it was not unusual for people to be smuggled out of Iran and to use false passports in doing so. The migration agent outlined the steps which he would have taken if he had known that the Tribunal was intending to use information including information relating to the security procedures at Iranian airports and the checks to which Iranians are subject in travelling in and out of Iran. His uncontradicted evidence was that he would have obtained further instructions from the appellant as to the circumstances in which he obtained the passport on which he left Iran and, in particular, who made arrangements with the smuggler and how he managed to evade security checks at Teheran airport. He swore that he would also have undertaken additional research in an attempt to establish the accuracy of the information relied on by the Tribunal regarding security procedures at the airport.
66 I am not satisfied that the failure to comply with s 424A(1) on the Tribunal’s part could have had no bearing on the outcome of the review before it. Not every such failure is jurisdictional – see the discussion by Mansfield J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 577 at [51]. But, in my view, the Tribunal’s error in this matter was sufficiently fundamental to amount to jurisdictional error. Its decision was not one "made under" the Act: Plaintiff S157/2002.
67 Accordingly, I consider that ground 2(b) of the notice of appeal has been established.
Ground 3 – "Common Law Procedural Fairness"
68 In view of my conclusions in relation to ground 2(b), I shall deal with this ground, fairly briefly. The first particular of this ground incorporated by reference the particulars relied upon in connection with Ground 2. For the reasons which I have set out above, I consider that a breach of procedural fairness as identified in Ground 2(b) (and only that Ground) has been established. In my opinion the breach and its consequences were sufficiently fundamental to amount to jurisdictional error for the reasons which I have given above.
69 Next it was asserted that the Tribunal had misled the appellant (and his migration agent) by handing to the agent, at the conclusion of the hearing, a letter which the Tribunal identified as being delivered pursuant to s 424A and which it told the appellant "sums up the concerns that arose in my reading of the file". That letter raised two matters on which it invited the appellant’s comments. They were, first, the appellant’s failure to indicate his status as a Christian in his entry interview and, secondly, the appellant’s subsequent explanation as to why he decided to abandon Islam.
70 The appellant argued, correctly in my view, that the Tribunal’s reasons show that its decision was not based on those two matters alone. The appellant said that, based on the Tribunal’s own description of the letter as summing up all of its concerns, he was entitled to believe that these other matters (summarised in paragraphs 62 and 63 of the appellant’s written submissions) were not matters that would be relied upon against him in the Tribunal’s final consideration of his claim. In that belief, he had not addressed them in the statutory declaration sworn on 23 January 2002 in response to the s 424A letter.
71 I have read the transcript of the proceedings before the Tribunal. I have also listened to the tapes of that hearing.
72 In my view, it was quite clear from the questions vigorously put by the Tribunal to the appellant that its concerns extended over all the matters which it canvassed with him during the course of that hearing. To adopt the language of Sackville J in Tin at [47] and [48], any reasonable observer of what took place at the hearing before the Tribunal must have realised that the appellant’s account of all these other matters would not necessarily be accepted by the Tribunal. I reject the appellant’s contention that he was misled.
73 As a further particular of Ground 3 the appellant asserted apprehended bias on the Tribunal’s part.
74 In his written submissions the appellant referred me to five matters, some of them which occurred during the hearing and others which appeared in the Tribunal’s statement of reasons, which he contended showed apprehended bias.
75 As I have mentioned, I have examined the transcript and listened to the tapes of the Tribunal hearing. I have also scrutinised the Tribunal’s reasons.
76 The appellant complained that the Tribunal conducted the hearing in an abrupt manner, regularly interrupting him in his attempts to give evidence and answer the Tribunal’s questions.
77 I do not accept that the Tribunal conducted the hearing in an abrupt manner. I accept that there were interruptions, but my overall impression was that the appellant was given a fair opportunity to respond. On more than one occasion when the appellant did not understand a question, he said so and the question was re-phrased. My assessment is that the appellant was given a fair opportunity to give evidence and to answer the Tribunal’s questions.
78 It is true that the Tribunal put to the appellant the proposition that it was only Iranians at the Port Hedland Detention Centre who converted to Christianity. The appellant, in my opinion, dealt with that proposition quite successfully by saying that he was not responsible for what others did and by asking the Tribunal to look at his case as a personal matter and not to consider what others may have done. The Tribunal assured him that it would.
79 It is also true that some of the language adopted by the Tribunal in its reasons exhibited a degree of scepticism and cynicism. But it must be remembered that the Tribunal had formed the conclusion that the appellant’s claim to conversion to Christianity was all a big fraud. I do not see the passages upon which the appellant relied as demonstrating apprehended bias.
80 The Tribunal also put to the appellant its views about what is or should be involved in an individual’s adoption of a religious faith. Again, I think that it was appropriate for it to do so as part of the process of testing the genuineness of the appellant’s claimed conversion. It also gave the appellant an opportunity to dispute those views.
81 Finally, the appellant pointed to the Tribunal’s statements to the effect that if the appellant on return to Iran engaged in evangelism it would be his choice entirely and the subsequent similar observation as supporting the ground of apprehended bias. I do not accept that submission.
82 I do not accept that, whether taken individually or as a whole, the matters which the appellant advanced as establishing apprehended bias demonstrated such a serious default on the Tribunal’s part. In short, I do not think that a fair minded lay observer, informed as to the nature of the proceedings and the matters in issue, might reasonably apprehend from what took place at the hearing and what was said in the Tribunal’s reasons that the Tribunal member might not bring an impartial mind to the resolution of the questions to be decided.
83 In my opinion, except to the extent of the overlap with Ground 2(b), Ground 3 has not been made out.
Ground 4 – Unreasonableness
84 The appellant contended that the Federal Magistrate had erred in failing to find that the Tribunal acted without or in excess of its jurisdiction in that its decision was so unreasonable that no reasonable Tribunal could have so decided. By way of particulars, the appellant simply adopted the particulars provided in connection with Grounds 1 to 3.
85 For the reasons which I have set out above, I reject the proposition that the Tribunal’s decision was unreasonable in the administrative law sense. The default which I have found [Ground 2(b)] does not lead to such a result. In my view, Ground 4 has not been made out.
CONCLUSION
86 For the foregoing reasons the appeal will be allowed. My provisional view is that despite the fact that the appellant has been successful in respect of only one of the grounds argued, the respondent should be ordered to pay the appellant’s costs, but I will hear counsel on that subject.
Associate:
Dated: 19 January 2004
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Counsel for the Appellant:
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Mr J J Serong (pro bono publico)
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Solicitors for the Appellant:
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Messrs Herbert Geer & Rundle (pro bono publico)
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Counsel for the Respondent:
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Mr P R Macliver
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Solicitor for the Respondent:
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Australian Government Solicitor
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Date of Hearing:
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28 November 2003
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Date of Judgment:
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19 January 2004
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URL: http://www.austlii.edu.au/au/cases/cth/FCA/2004/15.html