N1202/01A v Minister for Immigration & Multicultural Affairs

JUDGES: LEE, MOORE AND MADGWICK JJ DATE: 8 APRIL 2002 PLACE: SYDNEY

Introduction: 1 This is an appeal from the order of a Judge of this Court (Stone J) of 25 May 2001 dismissing an application made by the appellant under s 476 of the Migration Act 1958 (Cth) ("the Act") seeking review of a decision of the Refugee Review Tribunal ("the Tribunal"). The decision of the Tribunal affirmed the decision of a delegate of the respondent ("the Minister") that a protection visa not be granted to the appellant. 2 Section 65 of the Act provides that if the Minister is satisfied that, inter alia, the criteria prescribed for a visa by the Act or the regulations have been satisfied, the Minister is to grant a visa but if the Minister is not so satisfied the grant of a visa is to be refused. At material times, s 36(2) of the Act provided the following criterion in respect of a protection visa: "A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 3 In s 5 of the Act, "Refugees Convention" and "Refugees Protocol" (together referred to hereafter as "the Convention") are defined respectively as "the Convention relating to the Status of Refugees done at Geneva on 28 July 1951" and "the Protocol relating to the Status of Refugees done at New York on 31 January 1967". The term "protection obligations" is not defined in the Act and is not a term used in the Convention. 4 The Convention is an international treaty under which the "Contracting States" have agreed to apply the provisions of the Convention to "refugees." Sub-Article 1(A) of the Convention defines a "refugee" as follows: "For the purposes of the present Convention, the term 'refugee' shall apply to any person who:…(2)…owing to 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;…" Limitations upon the operation of that definition are set out in, inter alia, sub‑Articles 1(C), (D), (E) and (F). It was not contended that any of the foregoing sub-Articles applied to the appellant. 5 As a Contracting State, Australia has accepted the obligations imposed upon it under international law by reason of accession to the Convention. Numerous obligations in respect of refugees are set out in the Convention, including an undertaking by a Contracting State not to discriminate against a refugee, and to offer a refugee some of the opportunities available to a national of that State. All of those obligations could be said to meet a broad meaning of the phrase "protection obligations under the…Convention" but, having regard to the purpose of s 36(2), the phrase as used in that section is to be taken to extend only to an obligation imposed by the Convention that constitutes a direct, rather than indirect, obligation to protect a refugee. 6 The appellant, (31), his wife, (29), and son, (5), Iranian nationals, entered the Australian "migration zone" on 27 March 2000 without authority. Under ss 13 and 14 of the Act the appellant and his family became "unlawful non-citizens" upon entry. Pursuant to ss 189 and 196 of the Act they were placed in "immigration detention" where they have been kept ever since. On 21 July 2000 a daughter was born to the appellant and his wife. 7 On 26 June 2000 the appellant made application for a protection visa. The appellant's wife and son were "included" in "Part D" of that application, as "members of the family unit" who did not "have their own claims to be a refugee". After her birth the daughter was "included" in that application.

Extension of time for appeal 8 The parties to the application for review were the appellant and each member of the family. Only the appellant seeks to appeal from the dismissal of the application. A notice of appeal was not filed within the time provided by O 52 r 15 of the Federal Court Rules ("the Rules"). The appellant was represented by counsel before the learned primary judge but was not represented thereafter. Subsequently, on 14 August 2001, a visitor to the immigration detention facility arranged for counsel acting "pro bono publico" to provide advice to the appellant. As a result of that advice an application for leave to appeal was filed on 16 August 2001. Pursuant to Order 52 r 15(1) of the Rules, a notice of appeal had to be filed and served within twenty‑one days after the date of pronouncement of the judgment, namely, by 15 June 2001. The period of delay in filing a notice of appeal therefore, was approximately two months. 9 The appellant seeks an order under O 52 r 15(2) granting leave to bring an appeal out of time. The rule provides that "the Court or a Judge for special reasons may at any time give leave to file and serve a notice of appeal". It is plain that the grant of leave under Order 52 r 15(2) is not automatic. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12: "The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which a court can exercise its discretion." 10 Furthermore, the rule requires that an extension of time be granted only where there are "special reasons". This requirement was considered by a Full Court in Jess v Scott (1986) 12 FCR 187 at 195. The Full Court said: "It should not be overlooked that rule 15(2) enables leave to be given 'at any time'; the 'special reasons' relevant to such a power cannot but describe an elastic test, suitable for application across a range of situations, from an oversight of a day to a neglect persisted in during a prolonged period. It would require something very persuasive indeed to justify a grant of leave after, for example, a year; equally, it may be said, something much less significant might justify leave where a party is a few days late. 'Special reasons' must be understood in a sense capable of accommodating both types of situation. It is an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served." 11 The discretion to extend time is given for the purpose of enabling the court to do justice between the parties: (See: Hughes v National Trustees Executor and Agency Co of Australasia Ltd [1978] VR 257 at 262; Gallo v Dawson (1990) 93 ALR 479 at 480). If the delay is short and no injustice will be occasioned to the respondent, justice will usually be done if the extension of time is granted. 12 In the present case although the delay involved is a period of two months, it is to be borne in mind that leave is sought by a person: who is an applicant for refugee status; who does not understand English; who is not familiar with the legal system of this country; and, who, at all material times, has been interned in a detention centre without legal representation. It may be concluded, therefore that in those circumstances "special reasons" have been demonstrated and given that the Minister will not be prejudiced if leave is granted, leave to appeal out of time, ordinarily, would be granted. 13 However, an extension of time within which to file an appeal will not be granted without consideration being given to whether there is a respectable argument to be raised in the proposed appeal: (See: Hughes v National Trustee Executors and Agency Co of Australasia Ltd at 264; Burns v Grigg [1967] VR 871 at 872; Jess v Scott; Kalaba v The Queen (Unreported, Finn J, Federal Court of Australia, 13 September 1996 at [12]; Howard v Australian Electoral Commission [2000] FCA 1767 at [7]; W105/99A v Minister For Immigration & Multicultural Affairs [2001] FCA 1786 at [13].) 14 The Minister's opposition to a grant of leave was grounded on the submission that the appeal does not have sufficient prospect of success to make it just that the appeal be allowed to proceed. It is necessary, therefore, to examine the nature of the appellant's claim to be a Convention refugee and the substance of the appellant's grounds for appeal. 15 The appellant is of Kurdish ethnicity and a member of a minority religion, Al-Haqq (Yaresan). The appellant claimed the combination of being a Kurd and a member of a minority religion put him at risk of persecution if returned to Iran. The Tribunal found as follows in respect of those claims: "The Tribunal is satisfied that the followers of Al-Haqq are not in general, a persecuted minority. They are a very old group, a feature of Iran for seven hudred (sic) years and have survived the many changes in regimes in Iran. They are not known to challenge past or present governments. While arguments from silence can be suspect, in this case it is significant that the Yaresan do not feature in accounts of victims of the various repressive movements carried out by the revolutionary regime, especially in its early years. Modern Iran has an unfortunate history of executing its alleged opponents and enemies. The Yaresan do not feature, as a group, among them. There is none of the persecution recorded as, say, there is against the Ba'hai, another syncretistic group. While the Tribunal accepts that not all incidents within Iran are known outside the country, the persecution of a Kurdish religious minority is unlikely to go unnoticed. Kurds themselves have an international identity and there are many close observers of the Iranian scene who could have been expected to have noticed persecution of an identifiable group. It is in this context of a lack of evidence of persecution that the Tribunal has considered the applicant's own circumstances. The Applicant has claimed that his religious affiliation has been a source of discrimination amounting to persecution of him throughout his life. The Tribunal accepts that he might have suffered some discrimination at school. The Tribunal notes that he was at school during a particularly virulent phase of the revolution and so it accepts that he was an object for some scorn at school. However, it also notes his own evidence that the Harasat actually instructed the principal of the school to take him back after a period of suspension. The Applicant then completed his schooling. The Applicant was not denied primary and secondary education. He then was able to undertake tertiary studies in computers and has acquired a skill as a computer programmer. It accepts that he was unable to undertake university studies and this for a discriminatory reason. However, this did not prevent him from getting a skill and from finding employment and it would not do so in the future. The Tribunal is satisfied that he was not persecuted in the matter of his education and that he has achieved a higher level of education than that given to many of his compatriots." 16 The Tribunal accepted that the appellant, a computer programmer, suffered discrimination in his employment, apparently by reason of his religion, but was not satisfied that such discrimination amounted to persecution. The Tribunal accepted that on several occasions when authorities discovered that the appellant had obtained employment with a government agency by concealing his religious beliefs, the appellant had been detained for questioning and dismissed. The Tribunal accepted that such treatment was discriminatory but stated that it did not ground a well-founded fear of persecution because the appellant had the opportunity to seek employment in the "private sector". 17 The appellant did not suggest that the decision-making process miscarried in respect of the foregoing matters, but sought to rely on an argument not put to the learned primary judge, which, counsel submitted, became relevant after Her Honour's decision by reason of the decision of the High Court in Yusuf v Minister For Immigration & Multicultural Affairs (2001) 180 ALR 1. Her Honour delivered her decision on 25 May 2001 and the decision of the High Court was delivered on 31 May 2001. 18 The case put to this Court was that the Tribunal, in purporting to determine that it was not satisfied that the appellant had a well-founded fear that he would suffer persecution if returned to Iran, acted without jurisdiction or authority, by misinterpreting, or by applying incorrectly, the relevant law, or by failing to address the proper question raised on the material put before the Tribunal. It was submitted that an essential part of the appellant's claim was that he faced a threat to his freedom or safety in Iran by reason of his part in the decision made by his wife to renounce Islam and convert to the appellant's religion and that harm to the appellant could result from acts by or on behalf of Iranian authorities, or from the acts of members of the wife's family. 19 The appellant's wife was of Arab ethnicity and from birth a deputed follower of Islam. There were three brothers and seven sisters in her family. She stated that she had converted to the Al-Haqq religion after meeting and agreeing to marry the appellant. She had concealed that conversion from her family. After marriage she had lived with the appellant's family. She said that her family would view the appellant as a "teacher" of Al‑Haqq and would blame him for her conversion. 20 After the appellant and his family arrived in Australia they received letters from the appellant's father and from a sister of the appellant's wife. In support of his claims, the appellant submitted to the Tribunal translations of the three letters received. The first, said by the Tribunal to be from the appellant's mother, referred to problems occasioned by the conversion from Islam by the appellant's wife. The "author" claimed to have been arrested several times because it was assumed by authorities that the family had been involved in the conversion. The second letter was to the wife from her sister and referred to the family being questioned about her conversion. It was said that her relatives now hated her because of the conversion and that she would be known as an apostate. The third letter, again said by the Tribunal to be from the appellant's mother, stated that the author had been told to report to the authorities each Saturday morning and sign a paper. The letter also said that the author had been beaten and insulted and was not allowed to leave the hometown. It was said the appellant's wife's cousins had sworn they would take revenge on the appellant and had threatened the author. The material before the Tribunal suggested that the two letters said by the Tribunal to be from the appellant's mother, were written by the appellant's father. 21 The Tribunal stated that it was "not satisfied" that claims made in the letters as to the "relatives' anger" were true. The Tribunal did not find that the letters were not communications from Iran as represented. 22 The appellant submitted that his claim that Iranian authorities would treat him as a proselytizer for having obtained his wife's conversion from the Islamic faith and that such conduct was punishable by death, was not addressed by the Tribunal as part of the appellant's case. The Tribunal did say that it was not satisfied that there was a risk that an apostate in Iran would be executed where that person had quietly converted from Islam but the appellant submitted that the Tribunal did not assess the position of the appellant as a person who had caused a follower of Islam to renounce her faith. 23 Further, it was the appellant's case that the Tribunal did not consider whether it was possible that in future a member of the wife's family would take action against the appellant in respect of his imputed involvement in the wife's conversion from Islam. It was submitted that although the Tribunal was not satisfied that any member of the wife's family then held that intention, that was only part of the question the Tribunal had to address. The Tribunal had to look at the possibility that action to harm the appellant may be taken by members of the wife's family at some time in the future. If that possibility was not fanciful, it would have been open to the Tribunal to be satisfied that there was a real risk that the appellant could suffer harm if returned to Iran, such harm constituting persecution inflicted for a Convention reason. 24 It was submitted that insofar as the reasons of the Tribunal did not deal with these issues it could be concluded that those questions were not considered. (See: Yusuf perGleeson CJ at [10]). If, as a consequence, the right question was not addressed, then it may be said that the Tribunal lacked jurisdiction, or authority, to make the decision it made, (s 476(1)(b), (c)); or by reason of misinterpretation or misapplication of the relevant law that the Tribunal erred in law in making that decision. (Section 476(1)(e)). (See: Yusuf per McHugh, Gummow and Hayne JJ at [82]‑[85].) 25 The foregoing submissions demonstrate that there is a real issue to be considered in the appeal and sufficient reason to allow the appeal to proceed. We are satisfied that, in all the circumstances leave should be granted for the notice of appeal in this matter to be filed out of time and for the appeal to be treated as instituted by the notice of appeal filed and served.

Background and the learned primary judge's decision. 26 The learned primary judge set out in her reasons, in a summary form, the Tribunal's description of the appellant's claims (and those of his family) and the relevant evidence as well as the Tribunal's consideration and analysis of the claims and evidence. It is convenient simply to repeat her Honour's summary: "The applicants' claims before the Tribunal were based on matters including the husband's Kurdish ethnicity, his membership of the minority religious group "Al Haqq" or "Al Hagh" (also known as 'Yarasan'), his membership of a student association, his participation in a political demonstration and the fact that he has applied for refugee status in Australia. In relation to those matters, the Tribunal found that the applicant did not have a well-founded fear of persecution. The applicants have not sought to review any of those findings in this Court. Accordingly, there is no need to set out the Tribunal's reasons in relation to those claims. The husband and wife also claimed that they each had a well-founded fear of persecution because of the wife's conversion from Islam to Al Haqq. It was claimed that the husband would be presumed guilty of the offence of proselytising and the wife would be presumed guilty of apostasy. With some reservations the Tribunal accepted that the husband was a follower of the Al-Haqq religion. In relation to the wife's alleged conversion to that religion, the Tribunal stated: 'The Tribunal has considered [the husband's] claim that he will face serious problems and punishment in Iran for reasons of his wife's conversion to his religious faith… There are difficulties in the accounts given of the wife's conversion. It has been claimed that she converted to Al-Haqq prior to her wedding and in the ignorance of this by her parents. The Applicant husband claimed that her parents did not know that he was a member of this group even though he has also submitted that the Al-Haqq, and therefore he, himself do not 'dissimulate'. The Applicant husband was a Kurd from Ilam who had, he had claimed, already lost one job because he was identified as a member of Al-Haqq. He has claimed that he was sacked again in 1998, the year of his marriage, for the same reason. He claimed he was at that time detained for three weeks. That employment was with the Sea Transport Organisation in Khoramshar, that is in the town where his in-laws lived. The Tribunal does not accept that the wife's parents would make no enquiries of their prospective son-in-law's credentials and that they would be unable to find out, what he has claimed others had found out, that he was a member of Al-Haqq. That is, it is difficult to accept the issues raised in this paragraph did not result in his parents-in-law at least knowing that he was a member of Al-Haqq. The Tribunal also has taken into account that they lived together for two years before departing for Australia with no obvious negative consequence for either of them because of the marriage. Whether both or either of them was a devout follower of Al-Haqq, they apparently managed to persuade her large family and others around them that they were not religiously unusual or that their religious situation was no problem. That is, the alleged conversion did not apparently result in any change of behaviour on the part of the Applicant wife which raised suspicions. She did not exhibit zeal for a new religion nor seek to convert others. There appears to have been no public dimension to conversion. She told the Tribunal that she did not participate in Al‑Haqq rituals of groups, except for attending some singing and social occasions. This raises the issue as to whether the mere undergoing of an initiation ritual into Al-Haqq could be described as 'conversion'.' The Tribunal then considered the contents of letters sent by the husband's family suggesting that they had been questioned by the authorities in relation to the wife's conversion and stated that it did not find these compelling. It then stated 'The Tribunal has also taken into account that according to the Applicant husband it was his mother-in-law who told the authorities of her daughter's conversion to Al-Haqq even though he previously had stated that his in-laws did not know this. The Tribunal is not satisfied that it has been given a genuine account of the Applicant wife's religious position'. It is not clear whether the above passages amount to a finding that the wife did not convert to Al-Haqq or that the husband was not involved in persuading her to convert. The Tribunal clearly stated that, in its view, the story of the wife's conversion was not 'genuine'. However, it did not elaborate on the nature of its concerns. In any event, as the Tribunal then considered the position of the wife should she have converted, this uncertainty is not important. It is useful to set out the Tribunal's reasoning on this issue: 'However, [the Tribunal] also has considered the situation should she have converted. While apostasy is punishable by death, there are very few recent accounts of any such punishment being meted out. Because of the dearth of information on conversion to Al-Haqq, the Tribunal has looked at sources describing the treatment of Muslims converting to Christianity, a topic on which there is a considerable amount of information. The Annual Report on International Religious Freedom for 1999 notes that there are restrictions on freedom of religion in Iran and that conversion from Islam is proscribed. However, that does not mean that conversion is, ipso facto, treated in this way. As information from the Reasearch [sic] Directorate, Immigration and Refguee [sic] Board of Canada makes clear, the situation is not as stark as the law implies. "A professor of sociology at California State University who specializes in third world development, social change, democratization in the Middle East and Iran, stated in a 29 October 1999 telephone interview that…it is possible for Muslims to attended [sic] Catholic services and said that if a 'simple person' wanted to convert, 'that's not a problem'. He claimed that he has heard of many cases of ordinary people converting from Islam to Christianity…and that the government does not need to know if this does occur." REFINFO Version 96.0 (November/novembre 2000, IRN33082.E) The Tribunal accepts that the Applicant wife is not claiming conversion to one of the registered faiths in Iran but to a small officially unrecognised minority. However, it does believe there is some correspondence between them. It is not the case the [sic] all apostates are harshly treated. The Tribunal is satisfied that the circumstances in this case will not provoke harsh reaction. The Applicant wife has not openly offended against Islam. She has, she has claimed, quietly undergone a ritual of conversion to her husband's religion. Members of Al-Haqq consider themselves to be a branch of Muslims and the family travelled to Australia with Islamic material, a compass and a cassette of Koranic readings. The Tribunal is satisfied that her husband has not been persecuted for his membership of the Al-Haqq group. It is satisfied that she too will not be persecuted for her quiet adoption of her husband's religious identity. It is not satisfied that the claims made in the letter about relatives' anger, official searches and interrogations and maltreatment of their close relatives are true.' The Tribunal's treatment of the husband's claim that he would be considered guilty of the offence of 'proselytising' because of his wife's conversion to his religion is less clear and is the basis of one of the grounds of review raised by the applicants. It is discussed later in these reasons at [8]-[11]." (emphasis in original) The issues before the learned primary judge and her consideration of them 27 The appellant was represented in the proceedings before the primary judge. Three issues were raised before her Honour. The first was whether the Tribunal failed, within the meaning of s 476(1)(a) of the Act, to observe the procedures required to be observed in connection with the making of the decision. In particular it was submitted that, contrary to s 430(1)(c), the Tribunal failed to set out its findings on whether the appellant would suffer persecution because he would be presumed guilty of proselytising in connection with his wife's conversion from Islam. The second was whether the Tribunal's decision involved an error of law within the meaning of s 476(1)(e) of the Act being a failure to correctly apply the real chance test in determining whether the appellant's wife would be persecuted in Iran by reason of her apostasy. The third was that there was no evidence or other material that would justify the Tribunal's finding that Muslims who convert to unofficial religions in Iran are not persecuted. 28 As to the first ground, her Honour was satisfied the Tribunal did make a finding concerning the presumed guilt of the appellant of the offence of proselytising in connection with his wife's conversion from Islam. Her Honour said: "There can be no doubt that (sic) Tribunal was aware of this claim, being that the husband would suffer persecution because of his wife's conversion. It specifically stated that it had considered the claim and commented that: 'As the Applicants rightly submitted this claim had been raised prior to the primary decision but was not considered by the Minister's delegate.' Mr Jones, appearing for the applicants, argued that, despite this statement, the Tribunal had not stated its finding in relation to this claim. Quite properly, he drew my attention to a further comment of the Tribunal where, in the context of a discussion of the cumulative claims made by the husband, the Tribunal said: 'The Tribunal accepts that being a member of 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] Mr Jones valiantly pressed an interpretation of the last sentence to the effect that it was about 'guilt by association' rather than about 'proselytising'. In my opinion, however, the comment shows both that the Tribunal had made a finding on the point at issue and also the nature of that finding. I do not see how any other meaning could be attributed to it. It would no doubt have been better if the Tribunal had expressly set out its finding. Nevertheless, the statement is sufficient to comply with the requirements of Singh." 29 It is important to note that the conclusion of the primary judge concerning what findings the Tribunal had made, was reached in the context of dealing with a submission that the Tribunal had not made findings on material questions of fact as required by s 430. Her Honour's conclusion was that the Tribunal had made a finding about whether the appellant would suffer persecution because of his wife's conversion. Whether it should be characterised as a "finding" in the sense of a finding of fact or not (given that it relates to future events) is presently immaterial. It may be accepted that the primary judge considered that the Tribunal expressed a conclusion about what might happen to the appellant, were he to return to Iran, as a result of his role in his wife's conversion to Al-Haqq. Given the narrow issue before her Honour (now irrelevant because of the decision of the High Court in Yusuf which will be discussed further shortly) her Honour's conclusion should not be taken to be an endorsement of the approach adopted by the Tribunal in making the "finding". 30 As to the second ground, the primary judge was satisfied that the Tribunal had understood the legal principles concerning the "real chance" of persecution and that the complaint of the appellant concerned the weight to be attached to the evidence. As to the third ground, her Honour was satisfied that the Tribunal had not found that, in Tehran, conversion from Islam to an unofficial religion is not punished. 31 It should be noted that her Honour did refer to one matter raised on behalf of the appellant in the appeal, namely the Tribunal's reliance on evidence concerning the consequences of conversion from Islam and to Catholicism. Her Honour said: "The applicants challenged the Tribunal's reliance on evidence concerning the consequences of conversion from Islam to Catholicism. Mr Jones submitted that Catholicism is an official religion in Iran and therefore this material was not relevant in considering conversion to an unofficial religion. I do not agree with this submission. Obviously it would have been better to have evidence concerning the consequences of conversion to the Al-Haqq group. As the Tribunal was not able to obtain such information it was entirely reasonable for it to consider analogous situations. If the applicants' challenge has any force it is in relation to the weight to be attached to such evidence. That decision, however, is a matter for the Tribunal and cannot be disturbed by this Court."

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

Solicitor for the Appellant: Michaela Byers Solicitors

Counsel for the Respondent: N J Williams SC; M Allars

Solicitor for the Respondent: Australian Government Solicitor