The principles to be adopted.
16 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1 McHugh, Gummow and Hayne JJ, with whom Gleeson J agreed, said at para 75:
"If the tribunal, confronted by claims of past persecution, does not make findings about those claims, the statement of its reasons and findings on material questions of fact may well reveal error. The error in such a case will most likely be either an error of law (being an erroneous understanding of what constitutes a well-founded fear of persecution) or a failure to take account of relevant considerations (whether acts of persecution have occurred in the past)."
Later at para 95 their Honours said:
"The failure to refer to one of the alternative bases on which an applicant for protection visa based a claim would, in many cases, reveal a failure to take account of relevant considerations or an error of law such as would enable judicial review on the grounds stated in s 476 (1)(b), (c) and (e). Cases can, however, readily be imagined where the factual findings relating to one asserted basis for protection necessarily and inevitably denied any other basis for protection."
17 Even before Yusuf this Court had taken a similar approach. Thus in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 Merkel J said at 63 (references omitted):
"Material and evidence, as well as arguments, may be presented to the RRT but its inquisitorial procedures or enquiries are not limited to or by the materials, evidence or arguments presented to it. In an appropriate case the RRT may undertake its own enquiries and, in some instances, may be obliged to do so… Similarly, the RRT is not to limit its determination to the "case" articulated by an applicant if the evidence and material which it accepts, or does not reject raises a case on a basis not articulated by the applicant. That obligation arises by reason of the nature of the inquisitorial process and is not dependent upon whether the applicant is or is not represented. Representation… cannot affect the fundamental duty of the RRT, acting inquisitorially, to review the decision before it according to the "merits of the case"."
18 The substance of the comments of Merkel J have subsequently been approved by full courts, see: Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293-4 per Wilcox and Madgwick JJ, Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285 per Wilcox, Tamberlin and Madgwick JJ, at para 15, and in ABC v Minister for Immigration & Multicultural Affairs [2001] FCA 955, although in this case the reference is made really in passing and may, perhaps, be elliptical as the argument that there was jurisdictional error was actually rejected on the facts.
19 The difficulty which these statements, authoritative as they are, throws up is in what circumstances can it be said that the Tribunal has constructively failed to exercise its jurisdiction to deal with a case which may be available to an applicant, but which is not argued by the applicant at all.
20 In one sense it is difficult to see how a Tribunal commits an error of law (I use that ground as comprehending the other possible grounds which the High Court suggests may be raised) when the applicant himself or herself does not really raise the case squarely. To find reviewable error may be thought, at least in some cases, to be unfair to the Tribunal. While it is true that the Tribunal operates in an inquisitorial, rather than an adversarial way, it may be said that the Tribunal really has no obligation to an applicant to make the applicant's case for him or her and perhaps somewhat bizarre to conclude that in doing so the Tribunal makes an error of law.
21 Be that as it may, it is obvious from the extracts both from the High Court and the Full Court of this Court that there will be cases where the failure of the Tribunal to consider a case may involve an error of law. The question is then, what are the boundaries of this principle.
22 In the passage, secondly extracted from the judgment of the High Court in Yussuf, their Honours refer to the situation where the case which the Tribunal did not rule upon was one on which the applicant had "based" his case. If that is the relevant test, then any issue of unfairness to the Tribunal does not arise. But if that is the test then the applicant in the present case can not succeed. In no way can it be said that the applicant based himself on a case where his fear of persecution on religious grounds arose from the imputation to him of Baha'i beliefs because of his friendship with his girlfriend or other friends who happened to have that faith. The only relevant case upon which the applicant based himself was a fear of persecution because of conversion (or rather, intended conversion) to the Baha'i faith.
23 The test adopted by Merkel J and approved by Full Courts of this Court, which are binding upon me is clearly a lesser test. To come within it, it would suffice that the material or other evidence before the Tribunal raises the case, even if the case is not one on which the applicant bases himself and therefore raises squarely for decision by the Tribunal. I have some doubt whether this test is really consistent with what is said in Yusuf but, in any event, as I have said, I am bound by the decision of full courts and am content to accept the test as set out in the extract from the judgment of Merkel J above.
24 Counsel for the Minister submitted that the evidence and other material before the Tribunal did not raise the issue for two reasons. First, it was submitted, the applicant had never indicated that he had a subjective fear of persecution for a Convention reason based upon imputed religious beliefs derived from his friendship with his girlfriend or other friends of the Baha'i faith. Secondly, it was submitted that the country information before the Tribunal did not raise material which would permit the Tribunal to conclude that any subjective fear which the applicant had of this kind was well founded.
25 Counsel for the applicant submitted that the country information before the Tribunal was material from which the Tribunal would have been entitled to conclude that there was a real chance of persecution for the applicant if there was imputed to him the religious beliefs of his friends. He submitted, also, that the applicant had claimed fear of persecution, including execution, on religious grounds and that the imputation of religious beliefs was just one of a number of ways this fear of persecution could arise. So, it was submitted, the Tribunal erred in law in failing to deal with an issue, which on the face of the material before the Tribunal was raised, even if not squarely in submissions made by the applicant.
26 So far as the second of these matter is concerned I think that the country material would suffice to permit the Tribunal to conclude that there was a real chance of the applicant being persecuted on religious grounds should the authorities in Iran input to him the Baha'i faith as a result of his association with his girlfriend and other friends. Whether it would so conclude would be a question of fact for the Tribunal to decide. The country material indicated that men married to Baha'is have difficulties in employment or promotion because of "unsound background". Baha'is have either to deny their faith or break the law, are at least theoretically denied full citizenship and suffer discrimination in all areas of society. Indeed the Department of Foreign Affairs and Trade considers that all genuine Baha'is have a legitimate case for seeking refugee status whether or not involved in politics.
27 However, it must be recalled that for a person to fall within the Convention definition of a "refugee" the person must have a well-founded fear of persecution for a convention reason. That is to say, not only must there be, objectively, reasons for a fear of persecution but the person in question must actually have that fear for the particular convention reason. In the present case that means, in my opinion, that for an applicant to succeed, the applicant must not only satisfy the Tribunal on a review, that there would be imputed to the applicant the religious beliefs of those Baha'is with whom he is friendly, but that he has a subjective fear of persecution on religious grounds as a result of the religious beliefs that have been imputed to him. It must also be shown that there is objective evidence to show that that fear of persecution is well-founded.
28 Absent, therefore, material before the Tribunal which the Tribunal was entitled to accept or reject that the applicant had a subjective fear of persecution because of the imputation of the religious beliefs of his girlfriend and other Baha'i friends to him (ie on religious grounds) the evidence or other material before the Tribunal would not raise for consideration the alternative case which it is said that the Tribunal did not consider. The only relevant case that was raised before the Tribunal on the evidence and other material before it, which included the testimony of the applicant was a subjective fear of persecution on religious ground coming about from his intended conversion. That was the case which the Tribunal considered and rejected. In the circumstances of this case the evidence or other material simply did not raise the so-called alternative case which it was submitted the Tribunal failed to consider and which failure was submitted to involve reviewable error.
29 For these reasons I am of the view that the application should be dismissed and that the applicant should pay the Minister's costs of it. I so order.
I certify that the preceding twenty nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.