SAAD v Minister for Immigration & Multicultural & Indigenous Affairs

the tribunal's reasoning 17 In its reasons the Tribunal noted how the appellant's claims had changed from time to time. It noted the fact that the appellant had resiled from his claims to have left Iran illegally and to have been in trouble or at risk because of his membership of a group of people protesting against the government. However, as the Tribunal also noted, the appellant maintained his claim to have been detained for six months about six years previously, that he now held a well-founded fear of persecution because of his conversion to Christianity in Australia, and that he belonged to a group of protestors. The appellant had told the Tribunal that no-one in that group had suffered any harm by reason of that membership. 18 The Tribunal made a credibility finding against the appellant in relation to his claim about having been arrested. It found that this was a fabrication. 19 In relation to the association with the protest group, the Tribunal expressed some reservations, but noted that on the appellant's own account neither he nor anyone else in that group suffered any adverse consequences of membership of that group. The Tribunal found that the appellant would not suffer any adverse consequences for such membership should he return to Iran. In view of the fact that the appellant had made no mention of this matter when interviewed by an officer of the respondent's Department, the Tribunal found that the appellant held no fear of adverse consequences because of such membership. 20 The Tribunal then turned to the appellant's second sur place claim, based on alleged conversion to Christianity. The Tribunal noted the timing of this conversion. The Tribunal expressly referred to the fact that no claims in regard to conversion were made prior to the hearing on 6 March 2001 and that the appellant's move to embrace Christianity occurred after a letter from the Tribunal shortly before that hearing. The Tribunal assessed the appellant's claim of conversion to Christianity in the context of what it described as "the Applicant's pattern of claims over the course of the application". It found that this was yet another instance of opportunism and a claim of convenience, that the situation was contrived and that the appellant was not a genuine convert. The Tribunal found "without reservation" that the appellant had converted to Christianity opportunistically, with no real commitment, and that he would not proselytise if he returned to Iran in the reasonably foreseeable future. 21 The Tribunal considered whether the fact that the appellant had "gone public" with his conversion, within the limits of the Iranian community in the detention centre, might result in the authorities in Iran becoming aware of such conversion and assuming that the appellant had genuinely converted. The Tribunal regarded the chance of that occurring as being remote. It accepted independent evidence to the effect that a person of the appellant's standing would not be of interest to the authorities even if they assumed he had converted to Christianity. 22 The Tribunal concluded by observing that the appellant had left Iran legally and without being of any adverse interest to the authorities at the time. As it had found that his claimed conversion to Christianity was not genuine, this would create no additional impediment to his safe return to Iran where his profile is no greater than it was when he left. The Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention.

THE PROCEEDINGS AT FIRST INSTANCE 23 The appellant's application for an order of review did not specify any grounds. As the learned primary judge noted, the appellant complained in general terms about the Tribunal's decision and challenged the merits of findings of fact made by the Tribunal. The appellant also contended that the Tribunal erred in the manner in which it went about resolving and deciding his claim to have converted to Christianity. In particular, the appellant claimed that the Tribunal had referred only selectively to a letter of support provided by a Father Monaghan and had failed to call evidence from a Mr Mansourian to establish that his interest in Christianity had existed for longer than the few months which the Tribunal had found. 24 The primary judge then turned to the complaint about the Tribunal's failure to call witnesses. His Honour set out the sequence of events in relation to the calling of witnesses. The evidence was that when the Tribunal invited the appellant to attend the hearing on 6 March 2001, it asked the appellant if he wanted the Tribunal to obtain oral evidence from any other source. The appellant, by a response dated 20 January 2001 indicated that he did not. Another response from his migration agent, dated 26 February 2001, also indicated that the appellant did not want the Tribunal to take oral evidence from any witness. At that stage the appellant had not made any claims based on religion. Later, when invited to attend the 26 June 2001 hearing, the appellant indicated that he wanted Father Monaghan and Mr Mansourian to give evidence. His migration agent indicated that only Father Monaghan was required. Father Monaghan attended the Tribunal hearing and gave evidence. 25 The primary judge held that the Tribunal was not required to obtain evidence from the person named in a response to such an invitation. His Honour said that, while it was desirable for the Tribunal to indicate in its reasons that it had given consideration to such a request, it was of no consequence if the Tribunal failed to so indicate. 26 His Honour observed that the Tribunal had carefully addressed the appellant's claims to have converted to Christianity, and had given him a full opportunity to address the Tribunal's concerns about the timing of his interest in Christianity. It had also received evidence from Mr Monaghan. His Honour was not prepared, in those circumstances, to infer that the Tribunal did not have regard to the request to call Mr Mansourian to give evidence. 27 On 15 February 2002 (i.e. after the Tribunal's decision), the appellant sent to the Federal Court a letter from Mr Mansourian which indicated that the appellant had started a Bible correspondence course on 22 May 2001.

THE APPEAL 28 The appeal to this Court did not set out any grounds of appeal. 29 The appellant was not legally represented at the hearing of the appeal. However, he told us that he had, on the previous day, arranged legal representation. One member of the Court raised with counsel for the respondent the significance or otherwise of the Tribunal's apparent failure to deal with the first sur place claim despite its assurances, at the first hearing, that it would consider certain (identified) submissions on that matter. 30 Counsel told us that he had not considered this point and was not in a position to deal with it immediately. Nonetheless, he made some preliminary oral submissions on the point. We directed the respondent to file and serve written submissions on the first sur place claim, and gave the appellant leave to file general written submissions, with the respondent having leave to file submissions in reply. Those three sets of submissions were duly filed.

the appellant's submissions 31 The appellant submitted that the Tribunal committed two jurisdictional errors by ignoring two essential criteria for the grant of a protection visa. First, it had failed to address the first sur place claim. Secondly, it had ignored the question whether the appellant had a subjective fear of persecution. The appellant also submitted that the Tribunal had failed to comply with "the mandatory procedure" required by s 426(3) of the Act namely the obligation to have regard to the appellant's wishes that the Tribunal obtain oral evidence from Mr Mansourian.

my reasoning 32 I shall deal first with the point raised under s 426(3) of the Act. In my view, the evidence did not establish that the Tribunal failed to comply with s 426(3). 33 As mentioned above, the Tribunal had received a request under s 426 from the appellant's adviser which differed from the request made by the appellant himself in that it contained no request that evidence be taken from Mr Mansourian. The appellant, who was present at the second hearing and who also had his adviser at the hearing, did not at that point, or indeed subsequently, seek to have evidence taken from Mr Mansourian, even though further submissions were sent to the Tribunal after the hearing. In those circumstances, in my view, there is no basis for the assertion that the Tribunal acted in breach of s 426(3) of the Act by failing to have regard to the appellant's wishes that Mr Mansourian be called to give evidence at the hearing. 34 The Tribunal was not obliged to refer to the appellant's request in its reasons for decision: W352 v Minister for Immigration and Multicultural Affairs [2002] FCA 398 at [44]. In the circumstances of that case, French J was not prepared to infer that the Tribunal had disregarded the applicant's wishes in respect of witnesses. As I have mentioned above, Mansfield J took a similar course at first instance in this matter. In my respectful opinion, there is nothing in his Honour's reasoning which suggests any error of law on his part. 35 In supplementary submissions, filed with leave after the High Court of Australia gave judgment in Plaintiff S157/2002 v The Commonwealth [2003] HCA 2, the appellant submitted that the Tribunal's failure to obtain evidence from Mr Mansourian coupled with what was said to be its failure to provide an interpreter for the whole of the proceedings, constituted a denial of natural justice. The interpretation point had not previously been raised. The respondent challenged the factual basis for the assertion that there had not been sufficient interpretation of the proceedings before the Tribunal. 36 It is not necessary for us to decide this issue, in view of our conclusion below that the Tribunal fell into jurisdictional error in relation to the first sur place claim.

subjective fear of persecution 37 The Tribunal found that even if the Iranian authorities became aware that the appellant had claimed to have converted to Christianity whilst in Australia, this would not be of any adverse concern to them. That is, it found that objectively the appellant did not have a well-founded fear of persecution. 38 In those circumstances the authorities show that the Tribunal was not obliged to consider whether the appellant had a subjective fear of persecution: Selliah v Minister for Immigration and Multicultural Affairs [1999] FCA 615 at [40]. It is not necessary to refer to other authorities to similar effect. In my view, this principle is well established. This ground of appeal has not been made out.

the first sur place claim 39 The respondent submitted that the Tribunal had in fact dealt with the appellant's claim to have a raised profile with the authorities as a result of his application for asylum in Australia, when it said this: "He left Iran legally and without being of any adverse interest to the authorities at that time, and since I find his claimed conversion to Christianity is not genuine that this would create no additional impediment to his safe return to Iran where his profile is no greater than it was when he left." 40 I reject that submission. There is no mention in the above passage of the first sur place claim. Nor is that claim mentioned anywhere else in the Tribunal's reasoning. My assessment is that the Tribunal failed to consider the discrete, first sur place claim. This, in my view, was not (as the respondent submitted) simply a failure to refer to evidence in support of such a claim, but a complete failure to consider the claim at all. In my view, the Tribunal thereby fell into jurisdictional error of the type referred to in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30. See also SBAB v Minister for Immigration and Multicultural Affairs [2002] FCAFC 161; Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802 at [14] and Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79].

Conclusion 41 For the foregoing reasons I would allow the appeal with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justice Carr.

On Appeal from a Single Judge of the Federal Court of Australia

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

finkelstein j: 42 I agree in the reasons of Carr J. I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Associate: Dated: 11 April 2003 The Appellant was unrepresented at the hearing

Messrs Mallesons Stephen Jaques subsequently filed written submissions on behalf of the appellant pursuant to leave granted on the adjournment of the appeal

Counsel for the Respondent: Mr M J Roder

Solicitor for the Respondent: Messrs Sparke Helmore

Date of Hearing: 23 August 2002

Date of Judgment: 11 April 2003