SAAY v Minister for Immigration & Multicultural Affairs [2002] FCA 759 (17 June 2002)

Last Updated: 18 June 2002

FEDERAL COURT OF AUSTRALIA

SAAY v Minister for Immigration & Multicultural Affairs [2002] FCA 759

Migration Act 1958 (Cth) s 424A

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919; (2001) 110 FCR 27

Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407

SAAY v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 213 of 2001

O'LOUGHLIN J

17 JUNE 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 213 OF 2002

BETWEEN:	SAAY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O'LOUGHLIN J
DATE OF ORDER:	17 JUNE 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The Application be dismissed.

2. The Applicant pay the Respondent's costs which costs are to be taxed in default of agreement.

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	S 213 OF 2002

BETWEEN:	SAAY APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O'LOUGHLIN J
DATE:	17 JUNE 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 The applicant, a citizen of Iran, arrived in Australian on 1 January 2001. Some six months or so later, on 24 July 2001, he lodge an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department") pursuant to the provisions of the Migration Act 1958 (Cth) ("the Act"). That application was unsuccessful. On 31 August 2001 a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refused his application. The applicant applied for a review of that decision by the Refugee Review Tribunal ("the Tribunal"). Again he was unsuccessful. The Tribunal affirmed the decision of the delegate not to grant a protection visa. The applicant now seeks the intervention of this Court.

2 In his amended application for an order of review, the applicant, who had the benefit of legal advice in the preparation of that document, and the benefit of counsel in these proceedings, initially advanced four main grounds. In the first place, he argued that he had been denied natural justice before the Tribunal when his request to refer to the tapes of his initial interview by a Departmental officer was denied. The issue of a denial of natural justice has been abandoned as a ground of appeal but the alleged failure of the Tribunal to accede to the applicant's request to refer to the tapes still remains a live issue. That interview had been conducted at the Woomera Immigration Reception and Processing Centre ("the Centre") on 12 January 2001.

3 His second ground of review was that there was a failure on the part of the Tribunal "to take into account relevant considerations that ought properly to have been considered ...". That ground was also abandoned at the commencement of the submissions for the applicant.

4 The third issue, comprising three separate grounds of review, can be considered under the heading of "Religion". It was alleged that the Tribunal member had failed to give sufficient weight to the evidence about the applicant's religious persuasion and about the persecution that the applicant might suffer in consequence of his religious beliefs if he were to be returned to Iran. It was also alleged that the Tribunal failed to give any, or any sufficient, weight to the country information about the treatment of apostates in Iran and that the Tribunal had erred in concluding that there was no evidence to justify a finding that the applicant had converted to Christianity.

5 The final ground of review, as events transpired, became the applicant's predominant ground. It was in these terms:

"The Tribunal Member erred in that there was a failure to properly comply with the procedures and regulations required to be observed in connection with the making of the decision. Namely, there was a failure to properly comply with Section 424A and Section 424B of the Migration Act 1958."

6 At his initial interview ("the first interview"), which was conducted in Farsi on 12 January 2001, the applicant said that he was born in 1967 and that he had lived in Isfahan in Iran. He had completed his education in 1989 with a Diploma qualification and had worked until 2000 at a steel company. He is married with two children and is in his mid-thirties; his wife and children continue to live in Iran. His father is dead, but his mother continues to live in Iran with his two sisters and his brother. He said that he used his Iranian passport to leave the country.

7 In the data questionnaire that was compiled at the time of his first interview, he was recorded as stating that his religion was "Islam". In answer to the question "why did you leave your country ...?", he gave this answer:

"There is no security and no law. The government officials all against each other. There is no financial security. No medical services are available unless you pay a lot of money. When I had a chest operation and when my wife gave birth they charged us two month's earning. This is the summary of the Iran situation. I had personal problems with the religious fanaticism of the government. What my mind does not accept I cannot believe. There are many superstitions in this type of religious problems. Human beings have no worth in Iran."

In further answers, he was recorded as saying that he had planned to leave Iran about two years earlier and in answer to the question about his attitude to returning to Iran he was recorded as saying:

"Iran is against human rights. In other parts of the world they have hospitals for animals. In Iran they do not care about human beings."

He did not profess to belong to any political group, nor had any member of his family been involved in any meaningful activities against any government. A lengthy statement in his name was attached to his application for a protection visa. It had been prepared by Messrs Macpherson and Kelley of Dandenong Victoria who described themselves as solicitors and migration agents. Under the heading in the statement - "Why I left my Country", the applicant claimed that a few years before leaving Iran he had discussed with a Christian friend and the friend's mother his interest in Christianity. Speaking of the mother he wrote:

"At the end she said myself and her son are witness that you are Christian but we cannot give you any certificate."

The applicant's claim that he had converted to Christianity found some support in the evidence of Father Monaghan, the parish priest at Woomera. He said that the applicant seemed "very determined in his approach" to the matter of Christianity. The applicant then referred, by name, to a person who had been killed by the Hezbollah because, as he claimed in his statement, "he had changed his religion". Later he talked of an event when his five year old son asked him why people were beating themselves with chains. He and his son were, at that time, observing an Islamic traditional event. He said that he answered his son by saying that they were doing it "out of ignorance" whereupon four or five people accosted him and beat him.

8 He claimed that in 1987, he was denied entry into a university because the authorities had discovered that he did not say prayers and that he did not attend the Mosque. He also said that in the year preceding his leaving Iran he was "disowned" by his mother and siblings because of his beliefs; they did not know that he was a Christian, but they knew that he had no belief in Islam.

9 The Department of Foreign Affairs and Trade ("DFAT") 1996 country profile on Iran discussed the issue of "apostasy", drawing a distinction between those who worshipped privately and maintained a low profile as compared with those who publicly proclaimed some religion other than Islam. Among other things, the report contained the following information:

"Death sentences for apostasy have traditionally been issued to Baha'is and occasionally Christian converts who have been active in proselytising. However, the death sentence has rarely been carried out for apostasy alone ...Those who worship privately and maintain a low profile will be very unlikely to suffer any adverse attention from the authorities for their conversion, unless they are involved in other activities which would attract security interest."

10 A report from the UNHCR on the subject of "Iranian converts to Christianity" was also among the papers before the Tribunal. It said, among other things:

"Drawing on the above information, we are in a position to suggest that some, but by no means all, bona fide converts to Christianity among Iranian Muslims, depending on the circumstances of their conversion, the depth of their conviction and the extent of their practice run the risk of being persecuted in Iran, should they openly declare their change of faith, especially if they engage in propagating Christianity or attempt to proselytise other Muslims. On the other hand, many others, especially those living in big cities like Tehran, who have chosen to be discrete have not been and are not being actively pursued and persecuted."

The information contained in the DFAT assessment was put by the Tribunal to the applicant and, through his adviser, he replied that he would not be able to keep quiet as a Christian when his faith was being attacked. He believed that truth and sincerity were one of the foundations of the Bible and he was bound to pass on the message of God. To this he added that, in any event, in Iran he was already known as, or suspected of being, a Christian.

11 The applicant experienced difficulties with the Herasat from time to time at his place of employment. On two separate occasions he was "punished" by having fifteen days salary withheld as a result of allegations that he was a "dissident". On 23 November 2000, a third occasion, he was involved with fellow workers in a discussion about a program for Ramadan. He said that he expressed his views about the defects of Islam, especially with regard to Ramadan. Later, a close friend told him that another workmate, who represented the Islamic society, had reported him to the Herasat for making negative comments about Islam. After being told that, and fearing repercussions from the Herasat, the applicant asked for leave of absence from his work. He was granted leave, he left his work but he did not return.

12 The Tribunal noted that, as the applicant had been able to obtain a passport, it suggested that he was not of interest to the authorities. The applicant explained, however, that it was not the authorities who were causing him difficulties at that stage. It would, so he said, take time for the Herasat to refer his case to the disciplinary authorities and, as a passport could issue in a couple of days, and his being a replacement passport, he was able to obtain it before the authorities were aware of his dissidence.

13 The Tribunal challenged the applicant about him having stated at the first interview that his religion was Islam. According to the Tribunal, the applicant replied that he:

"... did not tell the interviewer that he believed in Islam. The reference to Islam in the record was a mistake. He told them that he did not believe in Islam because of the fanaticism".

RELIGION

14 The Tribunal was not prepared to accept the basic propositions that the applicant had advanced. It did not accept that he had converted to Christianity in Iran nor did it accept that he had a political or religious dispute at his place of work. Counsel for the Minister accepted that the Tribunal had relied upon the inconsistency between the applicant's case at the hearing before the Tribunal and the statement that had been given by him at the first interview as part of its reason for coming to its decision. The Tribunal pointed out that the applicant had not mentioned these matters at his first interview and he had not given the Tribunal a convincing explanation for not having done so. In particular, the Tribunal refused to accept that the interview was conducted "in a way that would discourage applicants from stating the critical fact or situation that caused them to leave Iran ...". The Tribunal came to this conclusion because it was of the opinion that a person, such as the applicant, when interviewed, would not generalise:

"... they would not complain of religious fanaticism and express religious scepticism but neglect to say how this affected them in particular because they were Christian. They would not speak generally of political rigidity, and the country's economic problems, and failings in social policy, but neglect to mention a political dispute that threatened to land them in Court."

SECTION 424A

15 The Tribunal addressed the question of the tapes of the first interview during the course of its reasons. It recorded that the applicant had repeatedly told the Tribunal that, at the time of the interview, he had been told "to restrict his answers" and "to be brief". The Tribunal said:

"The applicant repeated that information was left out of the record of the interview. He suggested the Tribunal listen to tapes of the interview. The Tribunal invited the applicant to tell it specifically what had been left out. The applicant reverted to his comment about having answered the questions in general rather than in detail."

16 It was common ground that the Tribunal did not make available to the applicant either the tapes of the first interview or a transcript of that interview. The applicant submitted that the failure of the Tribunal to make either the tapes or the transcript available amounted to a breach of s 424A of the Act and that the breach was of such magnitude as to warrant the intervention of the Court. The Minister argued that, as a matter of fact, there had been no breach but, even if there had, it was of such an inconsequential nature that the Court, as a matter of discretion, should decline to intervene. Furthermore, the Minister relied upon s 474 of the Act ("the privative clause" provision) arguing that it denied the applicant the right of review by this Court.

17 The question of the application of s 424A to the circumstances of the applicant revolves around the question whether the exemption that is to be found in par 424A(3)(b) applies to the facts of this case. To appreciate the issue that must be decided, it is best to set out the whole of the section:

"(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) The information and invitation must be given to the applicant:

(a) except where paragraph (b) applies - by one of the methods specified in section 441A; or

(b) if the applicant is in immigration detention - by a method prescribed for the purposes of giving documents to such a person.

(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."

18 The question of the application of s 424A to an earlier departmental interview was considered by a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919; (2001) 110 FCR 27 ("Al Shamry") - although it must be remembered that the judgment in Al Shamry was delivered on 24 July 2001 and was not, therefore, affected by the amendments to the Act which were made by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) ("the 2001 amendments"). In Al Shamry, the applicant for refugee status, having arrived in Australia, was detained and interviewed by an officer of the Department. A purported record of the interview was made ("the airport interview"). Subsequently, the applicant filed an application for a protection visa which was duly refused, as were his subsequent applications for a review by the Tribunal and by a judge of this Court. The transcript of the airport interview was not in evidence before the Court. However, its effect, and the use made of it, were summarised by the Tribunal in its reasons for its decision. In turn, the relevant passage from the reasons of the Tribunal was reproduced in the judgment of the learned primary judge. It is not now necessary to recite the detail of that applicant's history; it is sufficient to note that, during the airport interview, he made certain statements that were of acute relevance to his claim for refugee status. As Ryan and Conti JJ said in their joint judgment at [8] in the course of allowing the appeal:

"As perceived by the learned primary judge, the question for his determination in relation to the airport interview was whether that interview constituted `information' for the purposes of the application within the meaning of s 424A of the Act ..."

Merkel J in his concurring judgment noted that the Tribunal had made the following observation about the airport interview:

"It was not in dispute between the parties that the existence and relevance of the airport interview was not raised with the applicant at or before the hearing before the Tribunal. Nor was it in dispute that the airport interview was `information' for the purposes of s 424A."

19 In Al Shamry, the Minister had argued that "the information" that was constituted by the airport interview came within the exception contained in par 424A(3)(b) - it being in respect of information given by the applicant for the purpose of the application for a protection visa. The argument continued that the word "application" in the context of the paragraph, meant "all information" given by the applicant to officials in the Department (including that provided to the Tribunal) for the purpose of determining whether to grant a protection visa to the applicant. Ryan and Conti JJ disagreed. It was their opinion that the word "application", wherever it appeared in s 424A, meant "application for review by the Tribunal of a Ministerial decision". Merkel J came to the conclusion that it was a reasonable inference to find that the Tribunal's approach to the applicant's claims and credibility came about largely because the Tribunal regarded the detail of the claims that had been made for the purpose of the Tribunal's review to be inconsistent with earlier claims that had been made by the applicant in, among other places, the airport interview. His Honour went on to say at [53]:

"It is precisely in such circumstances that s 424A is to have a role as, if the relevance of the information had been pointed out to the [applicant], he may have been able to explain the inconsistency. He was denied that opportunity."

20 Based upon the decision of the Full Court in Al Shamry, it seems to me to be appropriate to observe that there may be an obligation on a Tribunal to give to an applicant notice of the Tribunal's intention to make use of the contents of an interview to which the applicant had earlier been a party. Unless the factual circumstances otherwise dictate a contrary conclusion, such an initial interview when an applicant first arrives in Australia is not to be regarded as "information" given by the applicant for the purpose of his or her application for a protection visa. However, I am persuaded by the submissions of counsel for the Minister that the factual circumstances in this case warrant a contrary conclusion. I have come to that conclusion for the following reasons:

* in par 3.2.8 of the delegate's reasons dated 31 August 2001 for refusing a protection visa to the applicant, the delegate noted "the differences in the reasons put forward by the applicant during his interview with a Departmental officer on 12 January 2001 for his departure from Iran ... and the claims being made in this application". The delegate then noted that the applicant had referred to his personal problems "with the religious fanaticism of the government", to having been told to be brief in his responses but, on the other hand, he had provided a degree of detail concerning medical services in Iran. The delegate continued:

"It is of concern that the applicant would relate such details yet make no reference at that time, even briefly, to what are clearly now being presented as his main reasons for fearing persecution in Iran, namely his interest in Christianity, and his fears of Harasat at his work place."

* Following upon the adverse decision of the delegate, the applicant's solicitors submitted a lengthy memorandum to the Tribunal. Included in that memorandum was the following statement:

"The claims put forward by the applicant are set out in the applicant's statement previously given during immigration processing at the Woomera Immigration Reception and Processing Centre and his interview with an officer of the Department. These statements indicate a well-founded fear of persecution for reasons of his religion (convert to Christianity), political opinion (actual and imputed) and membership of a particular social group (that of an `illegal expatriate'.)"

Counsel for the Minister referred to that passage upon the premise that it was a reference to the first interview, and counsel for the applicant did not contradict that proposition.

* The solicitors for the applicant in a lengthy submission to the Tribunal, referred to the delegate's decision, saying that:

"He [ie the applicant] did not mention his Christian faith and all of his claims at the initial interview because he was told that he would be provided with representation and would have a further opportunity of stating his claims in detail. He was told that he would have three interviews. He was not given the opportunity to speak about his claims. He merely answered the questions that were asked of him. He was asked if he believed in Islam and when he answered `no', no further questions were asked of him."

In my opinion, the contents of this submission from the applicant's solicitors to the Tribunal established, without any doubt, that the applicant was relying upon his version of what had been said at the first interview. It also established that the applicant and his advisers were aware that there was a conflict about what had been said by the applicant at that first interview and what he had said to the Tribunal. It is, in my opinion, significant that the solicitors wrote:

"The claims put forward by the applicant are set out in the applicant's statement previously given during immigration processing ..."

21 That statement established that the information in the first interview amounted to "information" that the applicant gave to the Tribunal "for the purposes of the application" that was then being considered by the Tribunal. I am therefore satisfied that there was no obligation on the part of the Tribunal to give to the applicant the particulars of information that the Tribunal considered would have been a reason, or part of a reason, for affirming the decision that was under review.

22 The applicant had every opportunity, as is abundantly clear from the Tribunal's reasons, to lay out his entire case before the Tribunal. The Tribunal was entitled to make its decision based on the information that the applicant placed before it and such additional information, if any, that the Tribunal might have thought it appropriate to obtain. If the information that had been placed before the delegate by the applicant was inadequate, that was not a matter of concern because of the opportunity that the applicant had to make good before the Tribunal any prior omission. It is also significant to bear in mind that the applicant, in his presentation of information to the Tribunal, had the benefit of assistance from his solicitors.

23 There is, in my opinion, another answer to the complaint about the failure to produce the tapes of the first interview. It is this. Let it be assumed that the applicant had not stated that Islam was his religion during the first interview; let it be assumed that he either said nothing or that he said he was a Christian. The fact remains that the decision that is under review is the decision of the Tribunal and not the decision of the delegate. The Tribunal, in its decision, addressed the subject of Christianity and of people returning to Iran in these terms:

"The Tribunal does not accept that people returning to Iran are punished for any of the following activities undertaken while in detention in Australia: studying Christianity, proclaiming an intention to convert or identifying oneself as a convert, or making related asylum claims, or being baptised. Conversion to Christianity is a common claim and often an unsuccessful one, and there is no evidence that returned asylum seekers in general are harmed, even if they are questioned at the airport. This includes returned asylum seekers who have made claims concerning Christianity."

24 The difficulty that the applicant faces - a difficulty that is almost impossible to overcome, is that the Tribunal did not believe him. As McHugh J said in Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; (2000) 168 ALR 407 at  [67]:

"If the primary decision maker stated that he or she does not believe a particular witness, no detailed reasons need be given as to why that particular witness was not believed. The Tribunal must give reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence. In any event, the reason for the disbelief is apparent in this case from the use of the word `implausible'. The disbelief arose from the tribunal's view that it was inherently unlikely that events had occurred as alleged."

25 In my opinion there is no substance in the grounds that have been advanced on behalf of the applicant. As no error in the reasoning process of the Tribunal has been identified, it is not therefore, necessary to have regard to the effect of the 2001 amendments to the Act.

26 The application is dismissed with costs.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin.

Associate:

Dated: 17 June 2002

Counsel for the Applicant:	Mr JJ Hyde
Solicitor for the Applicant:	Jeremy Moore & Associates
Counsel for the Respondent:	Mr MJ Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	30 April 2002
Date of Judgment:	17 June 2002