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[2002] FCA 279
Federal Court of Australia
2002-03-19
Hill J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 The applicant, Mr Ahvazi applies to the Court for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") which affirmed the decision of a delegate of the respondent Minister for Immigration and Multicultural Affairs that he be refused a protection visa. 2 It is a criterion for a protection visa that the Minister (or in the event there is an application for review of the Minister's decision to the Tribunal, the Tribunal,) be satisfied that the applicant is a person to whom Australia owes protection obligations. Australia will owe protection obligations to a person who is a refugee within the meaning of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as modified by the Protocol relating to the Status of Refugees, done at New York on 31 January 1967, (herein referred to as the Convention). Article 1A(2) of the Convention provides that a person will be a refugee if that person is a person who: "owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."
The Grounds of Review 3 By an amended application filed at the time of the hearing the applicant relied upon three grounds of review s 476(1) of the Migration Act 1958 ("the Act"), namely, error of law, want of jurisdiction or failing to take into account relevant factors. Each was, as counsel conceded, but a different way of raising the same issue. In essence, that issue lay in the failure, it was said, of the Tribunal to deal with an alternative way on which Mr Ahvasi put his case (or it might be said, could have put his case). That failure represented a constructive failure to exercise jurisdiction and involved an error of law in respect of which the Court has jurisdiction to review the decision under s 476(1) of the Act. 4 The alternative case, upon which it is said that the Tribunal failed to rule and which failure constituted a constructive failure of jurisdiction was that the association between the applicant and his girlfriend (who was of the Baha'i faith) and between the applicant and other friends of the Baha'i faith was such as to give rise to a real chance that the applicant would have imputed to him the Baha'i beliefs and thus would have a real chance of his being persecuted on religious grounds. 5 The parties were not really divided as to the principles of law to be applied. Rather they were divided on the application of those principles to the circumstances of the present case. To understand the competing positions it is necessary to say something about the case put to the Tribunal and the way the Tribunal dealt with that case.
The case put by the applicant at each stage and before the Tribunal 6 It must be said that the case which the applicant raised at all stages, including at the hearings before the Tribunal was essentially consistent. 7 In his initial application and interview he said by way of a statement prepared by a registered migration agent: "Two years ago I was at a party to farewell a friend who was going to America. Boys and girls were dancing together at this party. Some soldiers belonging to the Mafased (the place dealing with social misbehaviour), which is a branch of the police department, raided the home and arrested us and took us to the Mafased. I was sentenced to three months prison, 85 lashes and 15,000 Toman. I bought my prison term and the lashes back, and paid a total of 200,000 Toman, and I was released after two days. The Iranian government says, under the name of Muslim Shi'a that boys and girls are not allowed to dance together, boys and girls are not even allowed to walk together in the street, even if the girl is your cousin. There is also a rule that more than three people are not allowed to gather together in one place. If you break this rule, they take you and they keep you overnight. My family's religion is Muslim Shi'a. My mother, my brother and my sisters are all practising Shi'as. I have never practised this religion, and neither did my father. The religion of the majority of the people in Iran is Muslim Shi'a. In this religion, they don't explain what the religion is, they don't guide us, it is imposed and forced on us. The leaders say that religion should be separate from politics, but it is exactly the opposite in Iran and those leaders are imposing what they want to do in politics, using the name of the religion. They have made a bad name for the Muslim Shi'a religion by doing this. I wanted to find a religion that I could learn about and believe in and practise. I have four or five friends whose religion is Baha'i. I have known them for many years from school. They are honest, peaceful people. They mind their own business and don't interfere with politics and rob the people. I was curious about their religion and wanted to learn about it, but the Baha'i people are not allowed to promote their religion. I would ask them questions, but they would not answer me because they are not allowed. Approximately a year ago I decided I wanted to change my religion and that I wanted to do some research into the Baha'i religion with a view to becoming Baha'i. I was studying at university at the time to be an Industrial Draftsperson. As part of my studies, it was compulsory that I take a class called "Islamic Views". During one of these classes in April 2000, I asked the question "Why are we not able to change our religion?". The teacher answered me "Because you will be regarded as a traitor to the Muslim Shi'a religion". Nothing else happened at that time, but the Security Department of the university questioned people from the university, including my friends, about me. Some of my friends who knew that it was my intention to change my religion and research the Baha'i religion, told this to the Security Department, and in approximately July 2000 I was sacked from the university. They told me I was not allowed to study at the university any more because of religious issues. One of my paternal uncles is a very religious man and he found out about me wanting to change my religion and research the Baha'i religion. Once or twice he tried to talk me out of it, telling me not to do it, that the Muslim Shi'a religion is a good religion. Finally, about one and a half months after the death of my father, he told me that if I continued with what I wanted to do, he would report me. A person who wants to research a religion other than Muslim Shi'a, or to change his religion form Muslim Shi'a, is considered a traitor in Iran and the penalty for that is death. I had heard about some people who had also wanted to change their religion, one of whom I knew personally, and when the Etelatat found out, they were taken away for months and when they were returned, their tongues had been pulled out of their mouths. It is very important to me that I find a religion that I can understand, believe in and practise. I knew that one way or another, either from the Security Department at the university, or from my paternal uncle, or from some other means, the Etelatat would find out about me and I would be penalised to death. I knew my life was in danger and that I had to leave the country." On the basis of these facts he said that he feared that if he was sent back to Iran he would be executed or imprisoned for life. 8 His initial application was rejected by a delegate of the Minister. The delegate noted the claim made in summary as one that the applicant would be imprisoned for life or executed if he returned to Iran based on his desire to convert to the Baha'i faith and his illegal departure from Iran. 9 The only reference to the applicant's girlfriend and his friendship of others of the Baha'i faith is in connection with his claim that he had come to "like" the Baha'i faith. 10 The applicant then sought review of the delegate's decision in the Tribunal. The Migration Agent made a submission, which was before the Tribunal. The case made for the applicant was the same, namely fear of imprisonment or execution because of his desire to convert to the Baha'i faith and his illegal departure from Iran. Reference was made to the initial statement which accompanied the application for refugee status. 11 The applicant was not represented at the hearing, although the Tribunal had before it the submission of the agent to which reference has already been made. It seems that during the hearing reference was made both to the applicant's girlfriend being of the Baha'i faith and that he had some friends who were also of that faith. That this was so appears from an extract made from the transcript which was tendered by consent. The applicant was asked by the Tribunal Member what it was that attracted him to the Baha'i faith. He said that he had a number of Baha'i friends but the main attraction to the Baha'i was through his girlfriend. He said he would ask them questions about that faith but that his girlfriend was very reserved but he used to explore the issue and ask her to explain. The member said: "Well that's a matter I need to consider it seems to me not to follow at all that if you had Baha'i friends that there would be some suspicion that you would have taken the extraordinary step and converted to the Baha'i faith. Mr Ahvazi replied that he had told his mother and sister that he intended to marry the girl and that he would like to become Baha'i if he didn't have a chance to do so. 12 The Tribunal seemed surprised about the mention of the girlfriend and asked the applicant whether he had mentioned her before. The Tribunal noted that the applicant had mentioned four or five Baha'i friends. The applicant reiterated that he had mentioned the girlfriend and the Tribunal indicated that it would like to check on this. There is nothing in the Tribunal's reasons for decision which indicated that the Tribunal doubted that the applicant had earlier mentioned the girlfriend.
The Tribunal's decision. 13 The Tribunal rejected the application. It is unnecessary for present purposes to set out at length why this was so. It suffices to say that the Tribunal rejected any claim based on participation at a party some two years before the applicant left Iran on the basis that it did not indicate any foreseeable fear of persecution. The Tribunal also rejected the claim that the applicant was investigated and ultimately expelled from university due to his expression of religious views in class. 14 The Tribunal then turned to consider the claim that the applicant feared persecution because of his desire to convert to the Baha'i faith. It did so because it was of the view that the applicant knew little of that faith. It said: "His claim that since he associated with some Baha'is and was alienated from his own faith he determined to convert to a faith about which he knew little also lacks plausibility. So, too, does his claim that he signalled to family and others an intention to become a Baha'i knowing that such a step was impossible in Iran; that association between Baha'is and Muslims is, according to the applicant prohibited; that adherents of the faith often face serious harm; and that apostasy might even attract a death penalty." 15 Accordingly the Tribunal expressed itself not satisfied that the applicant had a genuine commitment to the Bahai faith but rather was of the view that the applicant had constructed his story of identification with that faith and of an intention to convert to it in order to manufacture a false claim to refugee status. Clearly no question of law arose from the Tribunal's conclusion. The question whether or not the applicant did have a genuine commitment to the Baha'i faith and intended to convert was a question of fact for the Tribunal.
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.
Associate: Dated: 19 March 2002 Counsel for the Applicant: Daniel Star
Solicitor for the Applicant: Jeremy Moore & Associates
Ahvazi
Minister for Immigration & Multicultural Affairs