Applicant NABD of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2002-08-22|Before: Stone JJ

the court: 1 This is an appeal from a judgment of a Judge of this Court, dismissing an application made by the appellant pursuant to s 39B(1) of the Judiciary Act 1903 (Cth) ("Judiciary Act"): NABD v Minister for Immigration & Multicultural Affairs [2002] FCA 384. The appellant sought writs of certiorari and mandamus directed to the second respondent ("the RRT") and a writ of prohibition directed to the first respondent ("the Minister") preventing him from giving effect to a decision of the RRT made on 19 December 2001. 2 The appellant is a national of Iran aged about 33. He has a tertiary education in Iran and worked there as a self-employed businessman. The appellant arrived in Australia on 9 November 2000, after spending some seven months in Indonesia. On 24 November 2000, he lodged an application under the Migration Act 1958 (Cth) ("Migration Act") for a protection visa. A delegate of the Minister refused the application on 31 January 2001. On 10 April 2001, the RRT affirmed the delegate's decision. On a subsequent application for judicial review of the RRT's decision, this Court set aside the decision and remitted the matter to the RRT for determination according to law. On 19 December 2001, a differently constituted RRT again affirmed the delegate's decision to refuse a protection visa. 3 The appellant, a Muslim by birth, is a comparatively recent convert to Christianity. He claimed before the RRT that he had identified with Christianity in Iran and that in furtherance of his religious beliefs he had attended a private religious meeting in that country. He said that as a result of attending that meeting he came to the attention of the authorities and fled from Iran to avoid persecution. The RRT found that the applicant had fabricated the account of the religious meeting and had also fabricated the claim that he had been wanted by the Iranian authorities by reason of his religious activities. No challenge has been made on the appeal to these factual findings. 4 The appellant also claimed, however, that his interest in Christianity deepened while he was in Indonesia and that he had been baptised in West Timor. He further claimed that he had actively pursued his Christian beliefs while in detention in Australia and had been responsible for the conversion of more than twenty fellow detainees from Islam to Christianity. He said that he feared he would be persecuted if he returned to Iran, since he would be regarded in that country as an apostate likely to proselytise Muslims. 5 The primary Judge held that the RRT's decision was not liable to be impeached on any of the grounds relied on by the appellant. A notice of appeal was filed on his behalf on 9 April 2002. 6 Mr Gillespie, who appeared for the appellant, sought leave at the hearing of the appeal to amend the notice of appeal filed on 9 April 2002. Mr Markus, who appeared for the Minister, opposed the grant of leave. However, Mr Markus founded his opposition to the application on what he said was the absence of any substance in any of the fresh grounds sought to be raised on behalf of the appellant. Very sensibly, Mr Markus accepted that the Court should hear full argument before ruling on the application to amend the notice of appeal. 7 The amended notice of appeal identifies a large number of grounds on which it is said that the primary Judge erred or, alternatively, that justify this Court in granting the relief sought at first instance. In oral argument, Mr Gillespie concentrated his submissions, in essence, on just two propositions:

the rrt's decision 8 The RRT accepted that the appellant had befriended a Christian in Iran and that he had occasionally discussed the Christian faith with his friend. It found, however, that the appellant had never attended church in Iran and had never taken "any real steps to embrace Christianity, as distinct from enquiring about its rudiments". As we have noted, the RRT also rejected the appellant's claims that he had attended a meeting to discuss Christianity and that he was wanted by the authorities because of his religious activities. Contrary to the appellant's claim that he had evaded authorities by secretly crossing the Turkish border, the RRT found that he had left Iran legally on his own passport. The RRT considered that the appellant's failure to make any effort to obtain asylum in Indonesia indicated that he did not have a strong subjective fear in relation to Iran. 9 The RRT then addressed the extent to which the appellant had accepted Christian beliefs after his departure from Iran. It said this: "the Tribunal has not found the [appellant] to be a witness of truth in relation to events in Iran and some other matters, and has serious reservations about his motivation for embracing Christianity while in Indonesia and subsequently. The Tribunal accepts, however, that the [appellant] might have genuinely embraced Christianity over time. It accepts that he has been baptised in Indonesia, that he has undertaken a bible study course by correspondence and that he has attended religious gatherings there and in a detention centre in Australia. It notes that those gatherings are generally organised by a minister of the Uniting Church. Despite some serious reservations about the genuineness of the [appellant] the Tribunal accepts that he has engaged in other religious activities as outlined by him at the hearing before this Tribunal. The Tribunal accepts that such activities include the distribution of pamphlets, speaking to others privately about his faith and encouraging interested persons to attend church services." 10 After setting out country information relating to religious minorities and Christian practices in Iran, the RRT continued as follows: "The Tribunal is not wholly satisfied that the[appellant] has genuinely embraced Christianity, at least from the outset, rather than engage in a 'conversion for convenience'. Even accepting, however, that he has now done so the available evidence indicates that if he were to practise as a Christian in Iran he would be able to do so in ways he has practised his faith in Australia without facing a real chance of persecution. Although he claims that he feels it his duty to tell others about his faith the evidence is that he is able to do so without facing any serious repercussions providing he does not proselytise. While accepting that the [appellant] has discussed aspects of the Christian faith with other detainees the Tribunal…does not accept that at least 20 detainees would disavow their life-long adherence to the Muslim faith on the basis of the [appellant's] criticism of Islam and his discussion of Christianity, within the strict limits of his inchoate knowledge of it. Information from DFAT [the Department of Foreign Affairs and Trade] indicates that converts who go about their devotions quietly are not bothered; it is only those who actively seek public attention through conspicuous proselytising who encounter a real chance of persecution. In weighing all the available evidence the Tribunal finds that the [appellant] would not choose to generally broadcast his practice of Christianity or conspicuously proselytize in Iran. If he were to choose to practise Christianity in Iran and to quietly spread the word the Tribunal concludes there is not a real chance that he would face persecution as a consequence." 11 The RRT referred to views expressed by North American academics that there were many cases of ordinary people in Iran converting from Islam to Christianity and that it was very unlikely that the Iranian authorities would take notice of the conversion of an individual outside Iran unless the individual had previously experienced problems with the authorities, or had been actively engaged in converting others from Islam. The RRT observed that the appellant did not have credible claims of any recent problems with the authorities in Iran. It accepted "that he ha[d] discussed Christianity with other detainees, but not that his activities since leaving Iran constitute[d] active attempts to convert others through proselytism as distinct from quiet sharing of his faith." 12 After referring to a report in November 2000 indicating growing tolerance of religious minorities in Iran, the RRT continued as follows: "According to DFAT, Iranian converts to Christianity who go about their devotions quietly and maintain a low profile are generally not disturbed, although those who work in government and revolutionary organisations may experience workplace harassment, discrimination or dismissal if it becomes known that they have converted. Available evidence from DFAT and others states that the authorities are not really concerned about ordinary people who convert to Christianity, provided they do not seek to convert others or engage in high profile religious activities. In reaching its findings the Tribunal also gives weight to the fact that the [appellant] is not a member of a denomination that exhorts its adherents to proselytise. A letter from his spiritual adviser indicates that the church the applicant attended in Indonesia has similar tenets to the Uniting Church denomination to which he has become attached in Australia. A distinction can be drawn between the quiet sharing of one's faith as an evangelist and the aggressive outreach through proselytising by adherents of some more fundamental faiths. Aforementioned country information indicates that the actual capacity of the [appellant] to practise his faith in Iran without a well-founded fear of persecution for a Convention reason is consistent both with his Christian teachings in Australia and, similarly, in Indonesia. A requirement to proselytise is not a core component of his faith nor, indeed, at all essential to it. The Tribunal finds that the applicant is able to practise his faith in Iran as he has done outside that country and without facing a real chance of persecution. It is not satisfied that there are any essential aspects of his faith he would be constrained in practising in Iran due to any well-founded fear of persecution. In weighing all the evidence, including the [appellant's] practise of his faith to date and the tenets of that faith, the Tribunal finds that any decision to avoid proselytising in Iran or of actively seeking attention on matters of religion is not inconsistent with his beliefs and practices. It finds that the [appellant] is not constrained in the practice of his avowed faith, nor would he be in Iran, due to a perception that to behave more openly or aggressively would leave him at risk of persecution." 13 The RRT concluded that it was not satisfied that the appellant was a person to whom Australian had protection obligations under the Convention relating to the Status of Refugees 1951 and accordingly did not satisfy the criterion set out in s 36(2) of the Migration Act for a protection visa.

the primary judgment 14 Before the primary Judge the appellant relied on what were said to be three jurisdictional errors to impugn the RRT's decision. These were the following:

the RRT had failed to take into account a relevant consideration, being the Christian denomination that the applicant had embraced;
the RRT had acted in violation of an imperative duty imposed upon it by s 424(1) of the Migration Act, which provides as follows: "In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review"; and
the RRT found, in the absence of any foundation in fact or evidence, that the Iranian authorities recognised a distinction between a person sharing his Christian faith as an evangelist and proselytisation. 15 The primary Judge considered that the first two grounds overlapped, but that there was no substance in either of them. The RRT had expressly referred to the denomination of the church with which the appellant had been associated in Indonesia and in Australia. While the RRT had not inquired into the doctrines of the Uniting Church (with which the appellant had formed his association), it had characterised his activities as a "quiet sharing of the faith". The RRT, in reaching that conclusion, had clearly taken into account the Christian denomination that had been embraced by the appellant. 16 The primary Judge also rejected the appellant's submission that the RRT had failed to have regard to certain country information suggesting that evangelical Christians had been oppressed in Iran and that some had been killed. The primary Judge considered that there was no basis for inferring that the relevant information had not been taken into account, even though the RRT had not specifically referred to the passages relied on by the appellant. 17 In relation to the third ground, the primary Judge observed that the distinction drawn by the RRT "exhibit[ed] some tension", having regard to country information suggesting that protestant and evangelical missionary churches have tended to face greater problems in Iran because of the importance placed by them on proselytising. His Honour pointed out that protestant churches are evangelical, in the sense that the Christian faith involves a "sharing of the good news with others" (as was said in a letter to the RRT by Reverend Watts, who led services at the detention centre). He continued as follows (at [35]): "However, the Tribunal clearly found, as a fact, that evangelism of that nature, the quiet sharing of one's faith, was of a different character altogether from active proselytisation. That is consistent with the passages that I have cited [from the country information]. Clearly, there was material before the Tribunal from which a conclusion could be drawn that the carrying out of activities, such as the applicant has engaged in in Australia, will not cause concern for the authorities in Iran." 18 Since the primary Judge held that there was no substance in any of the grounds relied on, he had no need to consider the effect of s 474(1) of the Migration Act, which provides that a "privative clause decision" "(a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account."

parties TO the appeal 19 Mr Markus moved at the hearing before the primary Judge for the RRT to be removed as a party to the proceedings. The application was presumably made on the ground that the RRT was improperly joined having regard to the terms of s 479 of the Migration Act. Section 479provides as follows: "The parties to a review of a privative clause decision resulting from an application referred to in s 477 are the Minister and: (a) if the privative clause decision concerned was reviewable under Part…7 and a decision on such a review has been made - the applicant in the review by the relevant Tribunal; or (b) in any other case - the person who is the subject of the decision; or (c) in any case - a person prescribed by the regulations." 20 The primary Judge declined to deal with the application, as it was brought informally and was not critical to the outcome of the case: at [3]. 21 In NAAA v Minister for Immigration & Multicultural Affairs [2002] FCA 362, decided two days after the primary Judge delivered judgment, Sackville J held that the RRT had not properly been joined as a party to proceedings for judicial review and that an order should be made for it to cease to be a party. His Honour expressed the view that although the language of s 479 of the Migration Act does not unequivocally state that the RRT is not a proper party to proceedings in which an applicant challenges a privative clause decision, the authorities support that construction of the section. 22 Mr Markus did not file a motion seeking an order removing the RRT as a party to the appeal. In his written submissions, however, he contended that the RRT had been wrongly named as a party on the ground that s 479 states exhaustively who are to be the parties in proceedings challenging privative clause decisions. Mr Markus did not elaborate on the contention, except to say that the removal of the RRT as a party would not limit the relief available to the appellant. Perhaps for this reason, Mr Gillespie did not advert to the issue in argument. 23 The joinder of the RRT to the appeal is not a matter of practical significance and was not the subject of argument. In these circumstances, we think that the appeal can be disposed of without considering whether the RRT was a necessary or proper party to the proceedings. Accordingly, we do not consider it necessary to address the issue.

reasoning 24 The appellant's primary submission appears to rest on the assumption that a failure by the RRT to take into account evidence material to a factual finding amounts, for the purposes of the jurisdiction conferred on this Court by s 39B(1) of the Judiciary Act, to a failure to take relevant considerations into account. This, in turn, is said to constitute a jurisdictional error by the RRT and justify the quashing of the RRT's decision. This assumption is at best dubious. 25 In Abebe v Commonwealth (1999) 197 CLR 510, Gummow and Hayne JJ referred to a submission that the RRT in that case had failed to take into account a relevant consideration, namely whether the applicant had been raped (as she had claimed) while in detention in Ethiopia. Their Honours expressed no concluded view about whether the submission, if made out, would reveal a failure to take into account a relevant consideration. However, they made this comment (at 579): "There appears much to be said…for the view that the identification of relevant and irrelevant considerations is to be drawn from the statute empowering the decision maker to act rather than from the particular facts of the case that the decision maker is called on to consider." 26 In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1, McHugh, Gummow and Hayne JJ (with whom Gleeson CJ agreed) cited (at 19) the comment in Abebe v Commonwealth in support of the proposition that the "considerations that are, or are not, relevant to the tribunal's task are to be identified primarily, perhaps even entirely, by reference to the Act rather than the particular facts of the case that the tribunal is called on to consider." Their Honours continued: "This does not deny that considerations advanced by the parties can have some importance in deciding what is or is not a relevant consideration. It may be, for example, that a particular statute makes the matters which are advanced in the course of a process of decision-making relevant considerations for the decision-maker. What is important, however, is that the grounds of judicial review that fasten upon the use made of relevant and irrelevant considerations are concerned essentially with whether the decision-maker has properly applied the law. They are not grounds that are centrally concerned with the process of making the particular findings of fact upon which the decision-maker acts." 27 In any event, we do not accept the appellant's submission that the RRT failed to take account of critical evidence in making its finding that the appellant's Christian beliefs required him only to spread the word quietly about Christianity, as distinct from engaging in "conspicuous" or "aggressive" proselytisation in Iran. The significance of this finding, as the primary Judge pointed out, was that the RRT also found, on the basis of country information, that Christians in Iran who quietly share their faith with others (including Muslims) are not at risk of persecution as a consequence. 28 Mr Gilespie's principal complaint was that the RRT had failed to take into account a letter sent to the RRT by Reverend Watts, Patrol Minister in the Kimberley Uniting Church Frontier Services. The letter, dated 23 November 2001, is as follows: "I write to give evidence regarding [the appellant]. I do this arising from a phone conversation with [the appellant's] legal adviser regarding his case before the Tribunal. My colleague, John Dolling, and I have been visiting the Curtin IRPC regularly to lead worship services and try to provide pastoral case to those detainees whom we meet. It is in this capacity that we have come to meet [the appellant] as he has been attending worship regularly since early this year. As I wrote in my letter to the Tribunal dated 26 March 2001, [the appellant] was baptised by the protestant church in West Timor (GMIT) and has clearly shown himself to be a genuine Christian by his involvement in the Christian group at Curtin and his enthusiasm to share his Christian faith with others. The evangelising that [the appellant] and others have done has meant that the Christian group in Curtin has grown over the year and many new Christians have been baptised. I have sighted the two statutory declarations [the appellant] has submitted regarding those whom he has instructed in the Christian faith. I am able to confirm that, according to our baptism records, each of the twenty people mentioned have been baptised." Mr Gillespie submitted that the letter was inconsistent with the RRT's refusal to accept that twenty detainees had been prepared to disavow their adherence to the Muslim faith on the basis of the appellant's criticism of Islam and his adherence to the tenets of Christianity. 29 This submission assumes that a finding inconsistent with Reverend Watts' letter would demonstrate that the RRT had simply overlooked the letter. Putting this assumption to one side, it is clear that there is no inconsistency between the letter and the RRT's finding. The letter is framed with some precision, and records only matters within Reverend Watts' knowledge. Nowhere does he assert that the appellant's activities had been responsible for the conversion of the twenty people who had been baptised. Indeed, the letter somewhat conspicuously refrains from making any such claim. 30 In our view, there is no basis for suggesting that the RRT failed to take into account Reverend Watts' letter, or the statutory declarations to which he refers in that letter. The material was before the RRT. The RRT specifically referred to another of Reverend Watts' letters and it could hardly be inferred from its failure to mention the letter of 23 November 2001 that it had failed to take the contents of that letter into account. Since the letter was not inconsistent with the RRT's findings, there was no occasion to mention it. In any event, the RRT was under no obligation to refer specifically to evidence inconsistent with its findings: cf Minister v Yusuf, at 17, per McHugh, Gummow and Hayne JJ. 31 The appellant's second submission, in effect, was that the RRT was bound to consider whether the appellant had a well-founded fear of persecution in Iran by reason simply of attending a place of Christian worship in Iran. Mr Gillespie did not identify the source of the RRT's obligation to address this issue. He may have had in mind the principle, endorsed in a number of authorities, that 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 inquisitorial process and is not dependent upon whether the applicant is or is not represented." See Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28, at 63, per Merkel J; Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184, at 196, per Merkel J (and authorities cited there). 32 One difficulty with this argument is that, although the RRT did not specifically state whether the appellant would or would not be at risk of persecution merely by reason of attending church services in Iran, it did find that he "is able to practise his faith in Iran as he has done outside that country and without facing a real chance of persecution. It is not satisfied that there are any essential aspects of his faith he would be constrained in practising in Iran due to any well-founded fear of persecution." The evidence established, as the RRT clearly appreciated, that the appellant attended church services at the detention centre and encouraged others to do so. The RRT's findings therefore imply that it was not satisfied that the appellant would be at risk of persecution in Iran by reason of simply attending church services in accordance with his beliefs. 33 A second difficulty with the appellant's case is that the material and evidence before the RRT were not sufficient to enliven the principle to which we have referred. It was never part of the appellant's case that he feared persecution in Iran, not as an apostate, but simply because he would be at risk of harm in consequence of attending church services. The fact that the appellant had not put this argument to the RRT might not, of itself, be an answer to the contention that the RRT should have considered the issue, if the evidence indicated that he might be at risk of persecution by reason simply of attending church services. But Mr Gillespie was unable to point to any material before the RRT suggesting that the appellant had a subjective fear of persecution arising from his desire to attend church services in Iran in accordance with his beliefs. Nor was Mr Gillespie able to point to any country information before the RRT suggesting that he would be at risk of persecution simply by reason of attending church services. There were some references in the country information to oppression of "evangelical" Christian groups which seek to engage actively in the proselytisation of Muslims. But Mr Gillespie was not able to point to material that might have made it obligatory for the RRT to address the issue raised on the appellant's behalf for the first time on appeal to this Court. 34 The appellant's second submission must be rejected.

other arguments 35 The appellant's written submissions challenged a number of the RRT's findings. These submissions, which were not developed further in oral argument, for the most part amounted to impermissible attempts to reagitate the merits of the RRT's decision. 36 In particular, Mr Gillespie argued that there was no evidence to support the RRT's finding that it was not a core component of the appellant's beliefs that he should actively proselytise. To a large extent this submission was based on a misreading of Reverend Watts' evidence. It also overlooked the RRT's reservations about the veracity of the appellant; the RRT was not bound to and did not accept in full his account of his religious beliefs and activities in Australia. There was material before the RRT, including its assessment of the appellant's knowledge of Christianity, that enabled it to find that his core beliefs did not require him to engage in conspicuous proselytisation of the kind that (on the RRT's findings) might attract adverse attention in Iran. 37 It is true, as the primary Judge pointed out, that the RRT's language is not entirely clear. Its use of the term "evangelical" is not altogether consistent and perhaps is somewhat confusing. But we agree with the primary Judge that it is clear that the RRT meant to distinguish between evangelism, in the sense of quietly sharing one's faith, and active proselytisation. There was material in the country information that was capable of supporting the RRT's finding that the first kind of activity would not create a risk of persecution in Iran. 38 There is no basis to any of the other arguments advanced on the appellant's behalf.

the privative clause 39 In view of the conclusion we have reached, there is no need to consider the effect of s 474(1) of the Migration Act had any of the appellant's complaints been made out. Shortly after the hearing of the appeal a five member Full Court gave judgment in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228. The judgments of three members of the Court (Black CJ, Beaumont and von Doussa JJ) suggest that s 474(1) operates to prevent the appellant obtaining relief on any of the grounds raised on his behalf. It is, however, unnecessary to resolve this question in order to decide the appeal.

conclusion 40 The appellant's challenges to the RRT's decision must fail. The appropriate course is to dismiss the appellant's application to amend the notice of appeal and to dismiss the appeal itself. The appellant must pay the Minister's costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices SACKVILLE, HELY & STONE JJ.

Solicitor for the Respondent: Mr A Markus appeared on behalf of the Australian Government Solicitor

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