SAAS of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 340 (5 November 2002)

Last Updated: 7 November 2002

FEDERAL COURT OF AUSTRALIA

SAAS of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 340

SAAS OF 2001 V MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S 156 of 2002

HILL, BRANSON & STONE JJ

5 NOVEMBER 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 156 of 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SAAS OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL, BRANSON & STONE JJ
DATE OF ORDER:	5 NOVEMBER 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT :

1. The appeal be dismissed.

2. The appellant pay the respondent's costs.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 156 of 2002
ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	SAAS OF 2001 APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	HILL, BRANSON & STONE JJ
DATE OF ORDER:	5 NOVEMBER 2002
WHERE MADE:	ADELAIDE

REASONS FOR JUDGMENT

THE COURT

Introduction

1 The appellant is a citizen of Iran who arrived in Australia on 3 January 2001. On 31 July 2001 he lodged an application for a protection visa. A delegate of the respondent refused this application on 20 August 2001. The Refugee Review Tribunal (`the Tribunal') affirmed the delegate's decision on 29 October 2001. On 11 June 2002 the primary judge dismissed an application to the Court for the decision of the Tribunal to be set aside. The appellant has appealed to the Full Court from the decision of the primary judge.

Background

2 The appellant was interviewed by an officer of the Department of Immigration and Multicultural Affairs soon after his arrival in Australia. At this interview the appellant stated that he was a Shiite Muslim and had worked for a steel conglomerate in Iran. He said that he had left Iran due to social and political problems in the country. These problems included lack of safety, religious prejudices and lack of freedom.

3 In his application for a protection visa and before the Tribunal, the appellant claimed that in 1999 he converted to Christianity. He said that he had run a coffee shop in a Christian health club. He said that the club was raided by Hefazat Etelaat who detained him for two days and were physically and verbally abusive towards him. He also claimed to have been a member of a Christian study group which distributed Christian books and publications. The appellant stated that he left Iran fearing that his life was in danger after one of the group was arrested.

4 Since his arrival in Australia, the appellant has been involved in Christian activities at Woomera Detention Centre. He has been baptised and confirmed and has completed a `Bible in Outline' correspondence course. Sister Anne Higgins of the Woomera-Roxby Downs Catholic Parish, who works at the detention centre, gave evidence before the Tribunal. She spoke of the appellant's religious activities while in detention, and stated her belief that the appellant is sincere in his conversion. Father Jim Monaghan, the parish priest, wrote to both the Tribunal and the primary judge expressing similar views.

5 The appellant claims that if he is returned to Iran he will continue to practice Christianity and will proselytise. As a result he claims he will suffer persecution in Iran.

The Tribunal's Decision

6 The Tribunal did not accept that the appellant had any interest in or contact with Christianity prior to his arrival in Australia. The Tribunal placed significant weight on the fact that the appellant made no mention of an interest in Christianity when he was first interviewed upon his arrival in Australia. The Tribunal also found that the appellant's claims in relation to working at a Christian club and being involved in a Christian study group in Iran were not credible.

7 In considering the appellant's religious activities since his arrival in Australia, the Tribunal applied s 91R(3) of the Migration Act 1958 (Cth) (`the Act'). Section 91R(3) relevantly provides:

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

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

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

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

8 The Tribunal was not convinced that the appellant's religious activities in Australia were other than for the purpose of strengthening his claim to be a refugee. It stated:

`The Tribunal finds that the applicant has deliberately engaged in a course of conduct in Australia, the sole purpose of which was to create a claim which he hoped would lead to his being granted refugee status in Australia.'

9 In considering the appellant's application, the Tribunal therefore disregarded the appellant's claims in relation to his pursuit of Christianity since his arrival in Australia. The Tribunal also rejected as implausible the appellant's claim that he would proselytise Christianity if he were returned to Iran. It further stated that it was not satisfied that the appellant would face persecution as `an ordinary, non-proselytising Christian convert' in Iran.

Findings of the Primary Judge

10 The appellant sought review of the Tribunal's decision. By his counsel he contended that section 91R(3) of the Act is invalid on constitutional grounds. Alternatively, he argued that the subsection was wrongly applied in his case. The primary judge found that section 91R(3) was a valid exercise of the power of the Commonwealth parliament. His Honour rejected the argument that the Tribunal had misapplied the provision. The primary judge also considered whether the applicant was given sufficient opportunity to present information to the Tribunal and concluded that sufficient opportunity was provided. His Honour dismissed the appellant's application.

Grounds of Appeal

11 The notice of appeal to this Court sets out the following grounds of appeal:

`1 That the learned Judge was wrong in his interpretation of the law with respect to the granting of Refugee status.

2. The learned trial Judge should have focused on the fact that the tribunal committed jurisdictional error which was not validated by the privative clause.'

Consideration

12 The appellant appeared before the Court today by video-link and without legal representation. He had the assistance of an interpreter. Arrangements had been made for the appellant to be brought to Adelaide to appear before the Court in person. Regrettably, the car in which the appellant was being transported was involved in an accident and could not be driven further. Fortunately it appears that no one was injured in the accident. The appellant was taken back to Woomera and a video-link connection to the Court was arranged. The appellant, via the video-link, foreshadowed an application for an adjournment to allow him to appear before the Court in person. He was advised that a successful application for an adjournment for that purpose would make it likely that his appeal could not be heard before February 2003. He indicated that in that circumstance he would prefer for the appeal to proceed. The appellant was granted an adjournment of approximately three hours to allow him to compose himself following the accident.

13 When the appeal was called on for hearing, the appellant made submissions to the Court touching on a number of matters. The principal matters raised by him were the following:

(a) why certain things were not mentioned by him in his first interview;

(b) the alleged inaccuracy of country information relied on by the Tribunal;

(c) the nature of conduct considered to be proselytising in Iran;

(d) the availability of employment to him should he return to Iran;

(e) whether he would face persecution for his religious beliefs in Iran;

(f) his belief that the Tribunal member took a negative approach to his claims and did not seek documents confirming his claims;

(g) the insufficiency of the information before the Tribunal generally; and

(h) that there are human rights abuses in Iran.

14 By his submissions the appellant in reality sought review on the merits of the decision of the Tribunal. The Federal Court is not empowered to conduct a review on the merits of the decision of the Tribunal. On an appeal to the Full Court from a decision of a judge of the Court, the concern of the Full Court is to determine whether the decision of the judge is affected in any way by error.

15 The primary judge by his reasons for decision gave careful consideration to a submission that s 91R(3) of the Act is invalid on constitutional grounds. His Honour rightly rejected the submission that s 91R(3) is invalid. It was also argued before his Honour that the Tribunal had misapplied s 91R(3) in the appellant's case. We agree with the reasons that his Honour gave for rejecting this argument.

16 It was contended before the primary judge that the Tribunal did not ask the appellant whether he would maintain his Christian faith and proselytise if he returned to Iran and feared persecution on this basis. Again we agree with the reasons which his Honour gave for rejecting this contention.

17 Nothing has been put to this Court that suggests that his Honour was wrong in his interpretation of the law with respect to the granting of refugee status. Examination of his Honour's reasons for judgment provide no support for this ground of appeal. The first ground of appeal must fail.

18 Similarly, the second ground of appeal finds no support in his Honour's reasons for judgment. His Honour had no occasion to determine whether the Tribunal committed jurisdictional error which was not validated by the privative clause. His Honour was not satisfied that the Tribunal had made any error of law. No error in his Honour's approach or conclusion has been identified.

19 The appropriate order is that the appeal be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated: 7 November 2002

Counsel for the Applicant:	The appellant appeared in person via video-link
Counsel for the Respondent:	Dr M A Perry
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	5 November 2002
Date of Judgment:	5 November 2002