Issues raised on the appeal and their consideration
32 During the hearing of the appeal counsel for the appellant, appearing pro bono publico, formulated the points sought to be raised in various ways and at various times during the hearing and subsequently in written submissions. In the original draft notice of appeal filed on 16 August 2001 the following ground appeared:
"[1] the Court below erred in not finding that the Tribunal had used an irrelevant consideration when the Tribunal used the example of conversion from Islam to Christianity in Iran to analyse the likely fate of those who convert from Islam to Al Haque."
33 The submissions made on behalf of the appellant during the hearing of the appeal exposed a number of further issues which were reflected in amendments later proposed to the draft notice of appeal as follows:
"2. The Tribunal erred in law in making an incorrect interpretation of the applicable law in not properly applying the law relating to process of defining "refugee".
Particulars
The Tribunal referred to letters from the appellant's family having been put in evidence, but the Tribunal rejected the letters without performing any speculation as to whether those letters evidenced past events which might in turn be a basis for a well founded fear of persecution in the future by (a) the Iranian State, or (b) the Iranian community (with the State failing to provide protection).
3. The Tribunal erred in law in making an incorrect interpretation of the applicable law in not properly applying the law relating to the process of defining "refugee".
Particulars
The Tribunal referred in its reasons to the position of the appellant as a member of the Al-Haqq, and also to the position of the wife of the appellant as both a member and convert to Al-Haqq from Islam. The Tribunal noted the appellant's claim as to his fear in respect of being the agent of his wife's apostasy from Islam to Al-Haqq, but the Tribunal performed no speculation, and failed consider all the relevant evidence as to the position of the appellant as such agent of the wife's apostasy, and whether being such agent would provide the basis of a well founded fear of persecution in the future by (a) the Iranian State, or (b) the Iranian community (with the State failing to provide protection)"
34 In order to deal with these issues it is necessary to explain in a little more detail the nature of the claims made by the appellant in support of his application for a protection visa as they were recounted by the Tribunal in its reasons.
35 Shortly after the appellant, his wife and child arrived in Australia, the appellant was interviewed by a compliance officer. The appellant said that he and his family had been members of Al-Haqq and had, for that reason, suffered discrimination (and also suffered discrimination for being Kurdish). He also said that his wife had converted from Islam to Al-Haqq before she married him and that would be considered to be a serious crime according to Islamic law. In that context he said that if they were forced to return his life would be in danger and they could be imprisoned. In written submissions later made to the Tribunal, the appellant's adviser had noted that the Minister's delegate (in rejecting the application) had not addressed one of the most serious claims. The claim concerned the conversion of the appellant's wife from Islam to Al-Haqq. The adviser submitted that this would be considered a serious crime and that it could attract the death penalty. In a statement later furnished by the appellant, he raised the matter of his wife's conversion from Islam before they were married and the problems that would bring. Both of them would face serious punishment for this.
36 In its reasons the Tribunal recounted what the appellant's wife had said (apparently in submissions to the Tribunal). She had said that she had converted from Islam to Al-Haqq and this would lead to severe punishment for her. She later said that family members knew about her conversion to Al-Haqq and they would blame her husband. She also said he would be regarded as a "teacher" of Al-Haqq.
37 The Tribunal had before it the US Department of State: 1999 Country Reports on Human Right Practices, which noted that the Constitution of Iran declared that the official religion was Islam and recognised, as the only "protected religious minorities", Zoroastrians, Christians and Jews. The Tribunal also had material from the research directorate of a Canadian Immigration and Refugee Board concerning the position of Catholics in Iran. It was quoted by the Tribunal in one of the extracts from its reasons which was quoted, in turn, by the primary judge in the passage set out at [26] above. However the Tribunal did not include in the quotation a matter noted in the research directorate's report (though it formed part of the passage quoted) namely that "the Catholic Church is officially recognised as a minority religion in Iran".
38 Before considering the issues raised in the appeal it is necessary to refer to one matter of detail concerning the structure and content of the Tribunal's reasons. In the first quoted passage from the Tribunal's reasons included in the passage set out at [26] above, the Tribunal identified the appellant's claim that he would face serious problems and punishment in Iran for reasons of his wife's conversion to his religious faith. The Tribunal went on to discuss the accounts that had been given about her conversion. In the second quoted passage from the Tribunal's reasons, it indicated it was not satisfied that it had been given an accurate account of the appellant's wife's religious position. What this means is not entirely clear but it is not, in terms, an express finding that the appellant's wife had not converted to Al-Haqq. Even if the comment can be taken to be an intimation by the Tribunal that it did not believe she had been converted, the intimation is equivocal. Similar observations about the Tribunal's reasons were made by the primary judge.
39 The Tribunal went on to consider the position, in that passage, on the assumption that she had converted. Towards the end of that passage, the Tribunal expressed the conclusion that the appellant had not been persecuted for his membership of the Al-Haqq group. This is fairly clearly a reference to earlier events and can be taken to be a finding concerning historical facts or at least a conclusion by reference to them. At the same point in its reasons the Tribunal said that the appellant's wife will not be persecuted for her quiet adoption of her husband's religious identity. This is fairly clearly a reference to the future. What the Tribunal did not address at this point is what might happen, if anything, to the appellant on his return to Iran as a result of his wife's conversion (on the assumption there had been a conversion). Later in its reasons, in the context of "consider(ing) the claims cumulatively", the Tribunal said:
"The Tribunal has been asked to consider the claims cumulatively. That is, in the husband's case, being Kurdish, a member of the Al-Haqq group whose wife moved across from Islam and having taken part in a student organisation and a demonstration add up to the profile of a person who faces a real chance of persecution. The Tribunal accepts that being a member of the Al-Haqq could lead to acts of discrimination against him. It does not find that his Kurdish ethnicity or his political profile add to that a dimension which puts him at risk of persecution. It has considered what has happened to him in the past in Iran and is satisfied that he has not been persecuted. It does not accept that there is now an additional risk because of his wife's conversion." (Emphasis added)
40 What the Tribunal did not do was to explain why the appellant was not at risk of persecution or even harm of a lesser order for reasons relating to his wife's conversion (assuming there had been a conversion) to Al-Haqq. That is, the Tribunal did not explain its reasoning in relation to the matter it said it had considered at the beginning of the first quoted passage from its reasons found in [26] above.
41 It is now necessary to address the three issues raised by the appellant. The first ground concerns the use the Tribunal made of the Canadian report and the views of the professor of sociology referred to in the report. Counsel for the appellant submitted that those views were irrelevant because they concerned conversion to Christianity which was a recognised religion under the Constitution of Iran. Al-Haqq did not have that status. Before considering what the Tribunal did in this case it is convenient to set out the observations of McHugh, Gummow and Hayne JJ (Gleeson CJ agreeing) in Yusuf. In relation to an alleged duty of the Tribunal to make findings, their Honours said (at [73] to [75]):
"It is, of course, essential to begin by considering the statutory scheme as a whole…... On analysis, however, the asserted duty to make findings may be simply another way of expressing the well‑known duty to take account of all relevant considerations. 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. In that regard it is important to recall, as Brennan J said in Attorney‑General (NSW) v Quin:
'The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: 'It is, emphatically, the province and duty of the judicial department to say what the law is.' The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.'
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.
As was pointed out in argument, applicants for protection visas often, but not invariably, claim that they have been subject to persecution. In Minister for Immigration and Ethnic Affairs v Guo, six members of the Court said:
'In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.'
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 It is not accurate, however, to say that the Tribunal is, therefore, under a duty to make all material findings of fact, if, as seems probable, that formulation of the duty is intended to extend the ambit of judicial review beyond accepted and well‑established limits. If it is not intended to have that effect, it is not useful to formulate the duty in that way. Rather, the relevant inquiry remains whether the Tribunal has made an error of law, has failed to take account of relevant considerations, or has taken account of irrelevant considerations."
42 Their Honours went on to consider the terms of Part 8 of the Act and the extent to which the grounds of review in s 476 permitted or authorised review when jurisdictional error was asserted. In their Honours' discussion of this question, they referred to circumstances when the Tribunal may have relied on irrelevant material. Their Honours said at [82] to [85]:
"…………What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision‑maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision‑maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
No doubt full weight must be given to s 476(3) and the limitations which it prescribes in the construction of improper exercise of power in par (d) of s 476(1). Equally, however, it is important to recognise that these limitations, unlike those prescribed by s 476(2), are limitations on only one of the grounds specified in s 476(1). All this being so, there is no reason to give either par (b) or par (c) of s 476(1) some meaning narrower than the meaning conveyed by the ordinary usage of the words of each of those paragraphs. In particular, it is important to recognise that, if the Tribunal identifies a wrong issue, asks a wrong question, ignores relevant material or relies on irrelevant material, it "exceeds its authority or powers". If that is so, the person who purported to make the decision "did not have jurisdiction" to make the decision he or she made, and the decision "was not authorised" by the Act.
Moreover, in such a case, the decision may well, within the meaning of par (e) of s 476(1), involve an error of law which involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That it cannot be said to be an improper exercise of power (as that expression is to be understood in s 476(1)(d), read in light of s 476(3)) is not to the point. No doubt it must be recognised that the ground stated in par (e) is not described simply as making an error of law. The qualification added is that the error of law involves an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found. That qualification emphasises that factual error by the Tribunal will not found review. Adopting what was said in Craig, making an erroneous finding or reaching a mistaken conclusion is not to make an error of law of the kind with which par (e) deals. That having been said, the addition of the qualification to par (e) is no reason to read the ground as a whole otherwise than according to the ordinary meaning of its language. If the Tribunal identifies a wrong issue, asks itself a wrong question, ignores relevant material or relies on irrelevant material in such a way as affects the exercise of its powers, that will very often reveal that it has made an error in its understanding of the applicable law or has failed to apply that law correctly to the facts it found. If that is so, the ground in s 476(1)(e) is made out.
Paragraphs (b), (c) and (e) would thus each be engaged in such a case and the Federal Court would have jurisdiction under Pt 8 of the Act to review the Tribunal's decision. This Court would also have original jurisdiction in the matter and could grant relief under s 75(v)."
43 A statement by a Tribunal that it "does not accept" an applicant's account of a past event, may convey no more than the Tribunal remains unpersuaded, or unable to reach a state of positive belief, on a matter of fact.
44 On some occasions, however, the context of the Tribunal's reasons may show that such a statement reflects a finding by the Tribunal that the applicant is an untruthful witness whose evidence is to be rejected. Of course, if such a finding is made, it will be stated in direct terms and the probative material said to justify the conclusion, will be identified. A finding of that type is to be distinguished from doubts expressed, or speculation engaged in, by the Tribunal in respect of issues of fact.
45 In determining whether the appellant's fear that he would suffer persecution, if returned to Iran, was well-founded, the Tribunal had to look at all matters relevant to these issues and ask itself whether there was a real risk that such persecution may occur. Notwithstanding that the Tribunal may not have been persuaded that past facts relied upon by the appellant as the grounds for his fear of persecution had occurred as claimed by the appellant, an assessment of the degree of risk of persecution facing the appellant in future had to have regard to the degree of probability that those past events had occurred as claimed. That is to say, the Tribunal could not exclude relevant matters from its consideration. (See: Kalala v Minister for Immigration & Multicultural Affairs [2001] FCA 1594 per Madgwick and North JJ at [25] - [26].
46 As Gleeson CJ and McHugh J stated in Abebe v Commonwealth (1999) 197 CLR 510 at [83], the fact that an applicant:
"…might fail to make out an affirmative case in respect of one or more of the above steps did not necessarily mean that [the] claim for refugee status must fail. As [Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 575-576] makes clear, even if the Tribunal is not affirmatively satisfied that the events deposed to by an applicant have occurred, the degree of probability of their occurrence or non-occurrence is a relevant matter in determining whether an applicant has a well-founded fear of persecution. The Tribunal 'must take into account the chance that the applicant was so [persecuted] when determining whether there is a well-founded fear of future persecution' [Guo at 576]."
47 As stated by Brooke LJ, with whom Robert Walker LJ concurred, in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 at 469-470:
"For the reasons much more fully explained in the Australian cases, when considering whether there is [a real risk] of persecution for a convention reason if an asylum-seeker is returned, it would be quite wrong to exclude matters totally from consideration in the balancing process simply because the decision-maker believes, on what may sometimes be somewhat fragile evidence, that they probably did not occur."
48 Of course, if, by reason of patent inconsistencies or dishonest statements in an applicant's account, the Tribunal forms a positive view that the applicant is not a credible witness in respect of claimed events, the Tribunal is not bound, as it otherwise would be, to consider whether, if those events had occurred as claimed, there was a real chance that the persecutory events feared by the applicant may occur in the future. (See: Abebe per Gleeson CJ and McHugh J at [85]; Guo per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow JJ at 576).
49 The question whether the Tribunal has made a decision as required by the Act does not involve inquiry into whether the Tribunal has made correct findings of fact, or has failed to make findings at all. The obligation on the Tribunal is to assess whether there is a real risk that an applicant may suffer persecution in future taking into account the possibility that the applicant may have experienced the events claimed before the Tribunal. Only if the Tribunal has reached a positive conclusion that such events did not occur, supported by reliance upon material that justifies that conclusion, may the Tribunal refuse to consider at all material that would otherwise be relevant to the assessment of whether there was a real chance that the applicant may suffer persecution and whether the applicant's fear of persecution was a well-founded fear.
50 In the present case, the Tribunal acknowledged that the appellant had advanced as part of his case, that he would face serious problems and punishment in Iran for reasons of his wife's conversion to Al-Haqq. Indeed the Tribunal acknowledged that this claim had been raised prior to the decision of the Minister's delegate but had not been considered by the delegate. So apart from the seriousness of the claim itself, it assumed particular significance in the review undertaken by the Tribunal. In considering this claim it was necessary for the Tribunal to do several things. First it had to consider if it was able to make positive findings about what, in fact, had happened. It had to examine the possibility that the wife had converted to Al-Haqq and, if she had, the possible role of the appellant in her conversion. Further, the Tribunal had to examine the possible consequences, particularly for the appellant, of the wife having converted and of the appellant having been involved. Having regard to these matters (and other matters that the Tribunal was satisfied had occurred in the past or was unable to determine had not occurred) the Tribunal had to consider what might happen to the appellant if he were to return to Iran.
51 In the present matter the Tribunal was unable to find positively that the wife had not converted to Al-Haqq. Indeed, the Tribunal went on to consider the position on the assumption that the wife had converted. It considered, in relation to her, that she would not be harshly treated. In doing so it relied on what the appellant alleges is irrelevant material. There is considerable force in the submission that the material was irrelevant in that the Tribunal treated the position of Muslims converting to Catholicism as an analog of Muslims converting to Al-Haqq. It did so without really explaining why the analogy was apt given that Catholicism was an officially recognised minority religion and Al-Haqq was not. However this material was called in aid by the Tribunal in apparently considering the position the wife would be in were she to return to Iran. While the Tribunal's reliance on this material may have had some indirect effect on its consideration of the appellant's position were he to return to Iran, it is by no means obvious that it did. But, in any event, its use of the report concerning conversion to Catholicism does not constitute reliance on irrelevant material that reveals, in relation to the appellant, that the Tribunal misunderstood the applicable law or failed to apply that law correctly to the facts it found. It was material relied on when considering whether the wife would be at risk of harm because of her apostasy were she to return to Iran. One cannot, of course, discount the possibility that the likelihood of her being at risk of harm because of the seriousness with which her conversion might be viewed, would bear some relationship to the likelihood of the appellant being at risk of harm because of the seriousness with which his involvement with her conversion might be viewed. However, even accepting this is so, it is necessary to ask whether this shows that the Tribunal misunderstood the applicable law or failed to apply the law correctly. It does not.
52 The second ground concerns the letters from the families of both the appellant and his wife. At one point in its reasons the Tribunal said it did not find the letters compelling while acknowledging they purportedly supported the appellant's (and the wife's and child's) claims. Its explanation for not finding them compelling appears to be that they reveal that the wife's family (who were said in one of the letters to be seeking revenge against the appellant) came to know of the appellant's adherence to Al-Haqq and his wife's conversion to Al-Haqq after they left Iran. The Tribunal apparently did not believe that the family would have come to know of the appellant's membership of Al-Haqq and the wife's conversion to Al-Haqq at this time given that various officials (at the appellant's place of employment and his university) knew of at least the appellant's adherence to Al-Haqq much earlier. The Tribunal later said in its reasons that it was not "satisfied that the claims made in the letters about relatives' anger, official searches and interrogations and maltreatment of their close relatives" were true.
53 However, the statement by the Tribunal that it was "not satisfied" as to the truth of asserted facts was not a finding that the assertions were false or that the claimed events did not occur. It is, as it states, the recording by the Tribunal of its inability to make a positive finding of fact and that it remained unpersuaded in that regard.
54 Even if, in the view of the Tribunal, the letters did not "compel" a finding by the Tribunal that facts had occurred as asserted in them, as explained earlier in these reasons the Tribunal had to consider the possibility that past events had occurred as claimed and to assess the risk that the appellant may suffer persecution having regard to such a possibility. This was not a case where, on probative material, the Tribunal had found that claimed events had not occurred, thereby permitting the Tribunal, in making its ultimate decision, to disregard the possibility that such events had occurred. In the circumstances it was necessary for the Tribunal to go on to consider the possibility that the wife's relatives might harm the appellant were he to return to Iran or that the authorities would harm him if they had harmed and threatened his relatives. This the Tribunal failed to do thereby providing ground for review.
55 The last ground appears to rest on the same legal principle as the second. That is, the Tribunal failed to consider the possibility that the appellant would suffer harm on return to Iran because of his involvement in his wife's conversion to Al-Haqq. The appellant's claim really raised for consideration the prospect of proselytising by the appellant in furtherance of his religious beliefs. In a letter from the appellant's migration agent dated 21 November 2000 to the Tribunal it was stated that the wife's conversion was affecting her whole Muslim family and the appellant's family was being accused of propagating Al-Haqq and this is a serious crime against Islam. In the Tribunal's account of the wife's evidence it is recorded that she had said her family members knew about her conversion, would blame her husband and he would be regarded as a "teacher" of Al-Haqq.
56 As noted earlier, the Tribunal identified the question of whether the appellant would face serious problems and punishment in Iran for reason of his wife's conversion to his religious faith was an issue raised in the appellant's claims but not dealt with by the delegate. Also as noted earlier the Tribunal entertained some doubt about its finding that the wife had not converted to Al-Haqq. It is true that the Tribunal stated in did not accept there was now an additional risk (to the appellant) because of his wife's conversion but did so in the context of what it described as considering the claims cumulatively. However the statement was no more than a bare assertion and did not even advert to be possible effect of his role in the conversion. The Tribunal undertook no analysis of the material before it which included commentary (a quotation from a US Department of State Annual Report on International Religious Freedom for 1999 quoted in the Canadian report earlier referred to) that non-Muslims (as the appellant was) put their lives at risk by proselytising Muslims (as the wife had been) and similar commentary in the US Department of State: 1999 Country Reports on Human Right Practices. It may be that a view might be taken of this material that this threat of harm to proselytisers arises only if there is widespread and public proselytising. However this is not the only view that could be taken of this material.
57 The ultimate question that the Tribunal should have addressed was whether there was a real risk of future persecution. (See: Abebe v Commonwealth [1999] 197 CLR 510 per Gummow, Hayne JJ at [192], [199].) Given the qualified way in which the Tribunal dealt with claimed past events, the law required the Tribunal to consider possible eventualities for the appellant if the asserted events were assumed. For example, the Tribunal had to consider what the reaction of the authorities would be to the appellant's role in converting his wife from Islam to Al-Haqq or indeed, having regard to the circumstances as otherwise found by the Tribunal, whether the authorities would come to know of his wife's conversion and of his role. If there was a risk that the authorities may learn of the wife's conversion and the role of the appellant would they view it as a matter of some seriousness? If so, what would the authorities do to the appellant? Might they inflict harm amounting to persecution? The Tribunal does not discuss any of these matters and it is to be concluded that it did not consider them. (Yusuf per Gleeson CJ at [10].) Its failure to do so evidences a misunderstanding of the law and a failure to have regard to relevant considerations and ground for review arises under s 476 (1) (b), (c), or (e) of the Act. (Yusuf per McHugh, Gummow and Hayne JJ at [85].)
58 For the foregoing reasons the appeal must be allowed and the matter remitted to the Tribunal for redetermination. As these reasons are distributed throughout the world on the Internet it is appropriate that the identity of the appellant not be disclosed and the appellant described as N1202/01A in the title of the proceeding.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Lee, Moore and Madgwick