SAAD v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 65 (11 April 2003)

Last Updated: 11 April 2003

FEDERAL COURT OF AUSTRALIA

SAAD v Minister for Immigration & Multicultural & Indigenous Affairs

[2003] FCAFC 65

MIGRATION - protection visa - two separate sur place claims made by appellant - Refugee Review Tribunal dealt with one of the sur place claims but made no mention of the other - whether simply a failure to refer to evidence in support of that claim or whether a complete failure to consider the claim at all - jurisdictional error on Tribunal's part.

Migration Act 1958 (Cth), ss 424A, 426(3)

W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 referred to

Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 applied

Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615 referred to

Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 referred to

SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161 referred to

Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 referred to

Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196; (2001) 113 FCR 396 referred to

SAAD v MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS

S 102 of 2002

COOPER, CARR & FINKELSTEIN JJ

11 APRIL 2003

PERTH (HEARD IN ADELAIDE)

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 102 OF 2002

BETWEEN:	SAAD Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent
JUDGES:	COOPER, CARR & FINKELSTEIN JJ
DATE OF ORDER:	11 APRIL 2003
WHERE MADE:	PERTH (HEARD IN ADELAIDE)

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders made on 15 March 2002 be set aside.

3. The matter be remitted to the Refugee Review Tribunal for determination in accordance with the law.

4. The respondent pay the appellant's costs of and incidental to the preparation and filing of his submissions on 23 September 2002 and 6 March 2003.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S102 OF 2002

BETWEEN:	SAAD APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	COOPER, CARR & FINKELSTEIN JJ
DATE:	11 APRIL 2003
PLACE:	PERTH (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

COOPER J:

1 I have read the reasons and orders proposed by Carr J. I agree with those reasons and orders.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Cooper.

Associate:

Dated: 11 April 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 102 OF 2002

BETWEEN:	SAAD Appellant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS Respondent

JUDGES:	COOPER, CARR & FINKELSTEIN JJ
DATE:	11 APRIL 2003
PLACE:	PERTH (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

CARR J

INTRODUCTION

2 This is an appeal from a judgment of a Judge of this Court given on 15 March 2002. The learned primary judge dismissed the appellant's application, filed on 5 October 2001, for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal"), made on 18 September 2001, affirming a decision of a delegate of the respondent not to grant the appellant a protection visa.

THE APPELLANT'S CLAIMS

3 The appellant's claims to be entitled to protection as a refugee are set out in the Tribunal's reasons. They are substantially repeated in the primary judge's reasons. There is no need to repeat the details of the claims here, but I will summarise them.

4 The appellant, a citizen of Iran, is an unmarried man who arrived in Australia on 28 March 2000. When he was first interviewed by an officer of the respondent's department, the appellant claimed that he left Iran using his own passport. When asked why he had left that country, he said that he did not like Iran because there was no respect for human rights there. He said that he had not had any particular problems in Iran. When the appellant was asked if he had any reasons for not wanting to return to Iran, he said that he had spent a lot of money to get here, there were social problems in Iran, there was a lack of possibilities both financial and social, and a "lack of respect" for human rights.

5 In his statement in support of his application for a protection visa, the appellant claimed that in about February 1996, whilst in the employment of the Sepah, he was accused of co-operating with anti-government groups. He was arrested at his home, blindfolded and taken to a detention centre where he was beaten and interrogated. As part of that interrogation he was shown photographs of groups of people and asked if he knew them. The appellant replied that he only knew of one of them who was a workplace colleague called Ibrahim Safari. The appellant claimed that he was kept in solitary confinement for six months and was then brought before a judge and released.

6 The appellant claimed that, as a result of that experience, he became "active against the regime". He gave details of his role in that regard. That included working with a group of about 30 people one of whom was a relative who was a former Muslim clergyman, but who had been stripped of that office. When the former clergyman was arrested the appellant decided to leave Iran. He left Iran, so he claimed at this stage, with the help of a smuggler and using a false Iranian passport. The appellant claimed to be afraid to go back to Iran because of his past political activities.

7 In a subsequent letter to the Tribunal, the appellant said that his arrest in 1996 was in fact after the authorities had discovered his close friendship with Mr Ibrahim Safari and his political activities. At the Tribunal hearing the appellant said that he believed the Iranian authorities suspected him of being a member of a Mujahadin group.

8 The Tribunal conducted a hearing on 6 March 2001. Before doing so, it sent the appellant a letter pursuant to s 424A of the Migration Act 1958 (Cth) ("the Act") putting to the appellant apparent differences between the information provided in his arrival interview and that provided in his statement which accompanied his application for a protection visa. The appellant responded to that letter.

9 During the hearing on 6 March 2001 the Tribunal told the appellant that the variations which it perceived between the two accounts provided by him left it with a problem as to what it should believe.

10 After the appellant had given evidence, his adviser submitted to the Tribunal that there was a sur place issue in that the appellant could face persecution if returned to Iran because of the fact that he had applied for a protection visa. I shall refer to that claim as "the first sur place claim". The adviser said that she disagreed with certain advice from the Department of Foreign Affairs and Trade ("DFAT") to the effect that failed asylum seekers could safely return to Iran without risk of persecution. The adviser referred to information received from the International Federation of Iranian Refugees which had been prepared in response to a Dutch governmental report on Iran. The adviser further submitted that although DFAT had reported that it was safe to return failed asylum seekers to Iran, criticism of the regime could result in serious consequences. The authorities could assume that a failed asylum seeker such as the appellant had criticised the regime in making a claim for refugee status. She pointed out that she had made similar submissions had been made in another Tribunal matter. The Tribunal agreed that it would consider those submissions in relation to the matter of the appellant.

11 Neither the appellant nor his adviser made any mention of religion at the hearing before the Tribunal on 6 March 2001. On 16 May 2001 the appellant caused a submission to be sent to the Tribunal to the effect that he had considered converting to Christianity, that he had undertaken a course to study Christianity and that this would have the effect of putting him in a situation of facing a real chance of persecution if returned to Iran ("the second sur place claim"). As part of that submission, the appellant said that he had not made this claim at the Tribunal hearing as he had not wanted the Tribunal to misunderstand his motives for studying Catholicism for the previous nine to ten months.

12 The Tribunal reconvened the hearing on 26 June 2001. It would appear that the main subject matter then considered was the appellant's alleged decision to become a Christian. The Tribunal asked the appellant whether he had decided to become a Christian before the hearing on 6 March 2001. He said that he had. The Tribunal pointed out that at that hearing the appellant had taken an oath on the Koran.

13 There was also discussion about the appellant's claim that he had not said at his arrival interview that he had left Iran on his own passport.

14 Later during the adjourned hearing there was a dramatic turn of events. The appellant said that he "wanted to confess" as he had taken an oath on the Bible and was now a Christian, it was important, so he said, that he told the truth.

15 The appellant then admitted that he had left Iran legally, and although he had joined a group following university student demonstrations in 1999, neither he nor anyone in that group had experienced problems as a result. The appellant still maintained his claim to have been detained for six months.

16 On 9 July 2001, the appellant sent a further submission to the Tribunal which contained considerable detail. In it he admitted that after his second interview with an officer of the respondent's Department, he had talked to more experienced asylum seekers and "strengthened" his case. He said that he was forced to do that because he was fearful of return and "did not say the real truth". The appellant maintained his claims based on renouncing Islam and converting to Christianity.

THE TRIBUNAL'S REASONING

17 In its reasons the Tribunal noted how the appellant's claims had changed from time to time. It noted the fact that the appellant had resiled from his claims to have left Iran illegally and to have been in trouble or at risk because of his membership of a group of people protesting against the government. However, as the Tribunal also noted, the appellant maintained his claim to have been detained for six months about six years previously, that he now held a well-founded fear of persecution because of his conversion to Christianity in Australia, and that he belonged to a group of protestors. The appellant had told the Tribunal that no-one in that group had suffered any harm by reason of that membership.

18 The Tribunal made a credibility finding against the appellant in relation to his claim about having been arrested. It found that this was a fabrication.

19 In relation to the association with the protest group, the Tribunal expressed some reservations, but noted that on the appellant's own account neither he nor anyone else in that group suffered any adverse consequences of membership of that group. The Tribunal found that the appellant would not suffer any adverse consequences for such membership should he return to Iran. In view of the fact that the appellant had made no mention of this matter when interviewed by an officer of the respondent's Department, the Tribunal found that the appellant held no fear of adverse consequences because of such membership.

20 The Tribunal then turned to the appellant's second sur place claim, based on alleged conversion to Christianity. The Tribunal noted the timing of this conversion. The Tribunal expressly referred to the fact that no claims in regard to conversion were made prior to the hearing on 6 March 2001 and that the appellant's move to embrace Christianity occurred after a letter from the Tribunal shortly before that hearing. The Tribunal assessed the appellant's claim of conversion to Christianity in the context of what it described as "the Applicant's pattern of claims over the course of the application". It found that this was yet another instance of opportunism and a claim of convenience, that the situation was contrived and that the appellant was not a genuine convert. The Tribunal found "without reservation" that the appellant had converted to Christianity opportunistically, with no real commitment, and that he would not proselytise if he returned to Iran in the reasonably foreseeable future.

21 The Tribunal considered whether the fact that the appellant had "gone public" with his conversion, within the limits of the Iranian community in the detention centre, might result in the authorities in Iran becoming aware of such conversion and assuming that the appellant had genuinely converted. The Tribunal regarded the chance of that occurring as being remote. It accepted independent evidence to the effect that a person of the appellant's standing would not be of interest to the authorities even if they assumed he had converted to Christianity.

22 The Tribunal concluded by observing that the appellant had left Iran legally and without being of any adverse interest to the authorities at the time. As it had found that his claimed conversion to Christianity was not genuine, this would create no additional impediment to his safe return to Iran where his profile is no greater than it was when he left. The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.

THE PROCEEDINGS AT FIRST INSTANCE

23 The appellant's application for an order of review did not specify any grounds. As the learned primary judge noted, the appellant complained in general terms about the Tribunal's decision and challenged the merits of findings of fact made by the Tribunal. The appellant also contended that the Tribunal erred in the manner in which it went about resolving and deciding his claim to have converted to Christianity. In particular, the appellant claimed that the Tribunal had referred only selectively to a letter of support provided by a Father Monaghan and had failed to call evidence from a Mr Mansourian to establish that his interest in Christianity had existed for longer than the few months which the Tribunal had found.

24 The primary judge then turned to the complaint about the Tribunal's failure to call witnesses. His Honour set out the sequence of events in relation to the calling of witnesses. The evidence was that when the Tribunal invited the appellant to attend the hearing on 6 March 2001, it asked the appellant if he wanted the Tribunal to obtain oral evidence from any other source. The appellant, by a response dated 20 January 2001 indicated that he did not. Another response from his migration agent, dated 26 February 2001, also indicated that the appellant did not want the Tribunal to take oral evidence from any witness. At that stage the appellant had not made any claims based on religion. Later, when invited to attend the 26 June 2001 hearing, the appellant indicated that he wanted Father Monaghan and Mr Mansourian to give evidence. His migration agent indicated that only Father Monaghan was required. Father Monaghan attended the Tribunal hearing and gave evidence.

25 The primary judge held that the Tribunal was not required to obtain evidence from the person named in a response to such an invitation. His Honour said that, while it was desirable for the Tribunal to indicate in its reasons that it had given consideration to such a request, it was of no consequence if the Tribunal failed to so indicate.

26 His Honour observed that the Tribunal had carefully addressed the appellant's claims to have converted to Christianity, and had given him a full opportunity to address the Tribunal's concerns about the timing of his interest in Christianity. It had also received evidence from Mr Monaghan. His Honour was not prepared, in those circumstances, to infer that the Tribunal did not have regard to the request to call Mr Mansourian to give evidence.

27 On 15 February 2002 (i.e. after the Tribunal's decision), the appellant sent to the Federal Court a letter from Mr Mansourian which indicated that the appellant had started a Bible correspondence course on 22 May 2001.

THE APPEAL

28 The appeal to this Court did not set out any grounds of appeal.

29 The appellant was not legally represented at the hearing of the appeal. However, he told us that he had, on the previous day, arranged legal representation. One member of the Court raised with counsel for the respondent the significance or otherwise of the Tribunal's apparent failure to deal with the first sur place claim despite its assurances, at the first hearing, that it would consider certain (identified) submissions on that matter.

30 Counsel told us that he had not considered this point and was not in a position to deal with it immediately. Nonetheless, he made some preliminary oral submissions on the point. We directed the respondent to file and serve written submissions on the first sur place claim, and gave the appellant leave to file general written submissions, with the respondent having leave to file submissions in reply. Those three sets of submissions were duly filed.

THE APPELLANT'S SUBMISSIONS

31 The appellant submitted that the Tribunal committed two jurisdictional errors by ignoring two essential criteria for the grant of a protection visa. First, it had failed to address the first sur place claim. Secondly, it had ignored the question whether the appellant had a subjective fear of persecution. The appellant also submitted that the Tribunal had failed to comply with "the mandatory procedure" required by s 426(3) of the Act namely the obligation to have regard to the appellant's wishes that the Tribunal obtain oral evidence from Mr Mansourian.

MY REASONING

32 I shall deal first with the point raised under s 426(3) of the Act. In my view, the evidence did not establish that the Tribunal failed to comply with s 426(3).

33 As mentioned above, the Tribunal had received a request under s 426 from the appellant's adviser which differed from the request made by the appellant himself in that it contained no request that evidence be taken from Mr Mansourian. The appellant, who was present at the second hearing and who also had his adviser at the hearing, did not at that point, or indeed subsequently, seek to have evidence taken from Mr Mansourian, even though further submissions were sent to the Tribunal after the hearing. In those circumstances, in my view, there is no basis for the assertion that the Tribunal acted in breach of s 426(3) of the Act by failing to have regard to the appellant's wishes that Mr Mansourian be called to give evidence at the hearing.

34 The Tribunal was not obliged to refer to the appellant's request in its reasons for decision: W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [44]. In the circumstances of that case, French J was not prepared to infer that the Tribunal had disregarded the applicant's wishes in respect of witnesses. As I have mentioned above, Mansfield J took a similar course at first instance in this matter. In my respectful opinion, there is nothing in his Honour's reasoning which suggests any error of law on his part.

35 In supplementary submissions, filed with leave after the High Court of Australia gave judgment in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2, the appellant submitted that the Tribunal's failure to obtain evidence from Mr Mansourian coupled with what was said to be its failure to provide an interpreter for the whole of the proceedings, constituted a denial of natural justice. The interpretation point had not previously been raised. The respondent challenged the factual basis for the assertion that there had not been sufficient interpretation of the proceedings before the Tribunal.

36 It is not necessary for us to decide this issue, in view of our conclusion below that the Tribunal fell into jurisdictional error in relation to the first sur place claim.

SUBJECTIVE FEAR OF PERSECUTION

37 The Tribunal found that even if the Iranian authorities became aware that the appellant had claimed to have converted to Christianity whilst in Australia, this would not be of any adverse concern to them. That is, it found that objectively the appellant did not have a well-founded fear of persecution.

38 In those circumstances the authorities show that the Tribunal was not obliged to consider whether the appellant had a subjective fear of persecution: Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615 at [40]. It is not necessary to refer to other authorities to similar effect. In my view, this principle is well established. This ground of appeal has not been made out.

THE FIRST SUR PLACE CLAIM

39 The respondent submitted that the Tribunal had in fact dealt with the appellant's claim to have a raised profile with the authorities as a result of his application for asylum in Australia, when it said this:

"He left Iran legally and without being of any adverse interest to the authorities at that time, and since I find his claimed conversion to Christianity is not genuine that this would create no additional impediment to his safe return to Iran where his profile is no greater than it was when he left."

40 I reject that submission. There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79].

CONCLUSION

41 For the foregoing reasons I would allow the appeal with costs.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

Associate:

Dated: 11 April 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 102 of 2002

On Appeal from a Single Judge of the Federal Court of Australia

BETWEEN:	SAAD Appellant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGES:	COOPER, CARR & FINKELSTEIN JJ
DATE:	11 APRIL 2003
PLACE:	PERTH (HEARD IN ADELAIDE)

REASONS FOR JUDGMENT

FINKELSTEIN J:

42 I agree in the reasons of Carr J.

I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate:

Dated: 11 April 2003

The Appellant was unrepresented at the hearing
Messrs Mallesons Stephen Jaques subsequently filed written submissions on behalf of the appellant pursuant to leave granted on the adjournment of the appeal
Counsel for the Respondent:	Mr M J Roder
Solicitor for the Respondent:	Messrs Sparke Helmore
Date of Hearing:	23 August 2002
Date of Judgment:	11 April 2003