CONSIDERATION
14 It is convenient first to note the relevant material before the Tribunal. Section 424A obliged the Tribunal, in certain circumstances, to give to the appellant particulars of information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision under review, and to give to the appellant the opportunity to comment on it. On 10 October 2001 the Tribunal wrote to the appellant, and his migration agent, in the following terms:
"The Tribunal has information that would, subject to any comments you make, be the reason, or part of the reason, for deciding that you are not entitled to a protection Visa.
The information is as follows: In your arrival interview you said that you were a Shi'a Muslim. You complained of the restrictions of life in Iran but you said nothing in particular had happened to you to cause you to leave there.
This is relevant to the credibility of your subsequent claims concerning Christianity or imputed Christianity or being in difficulties with the authorities due to having insulted Islam.
You are invited to comment on this information. Your comments are to be in writing and in English. They are to be received at the Tribunal by Wednesday, 17 October 2001."
The appellant responded, apparently both directly and through his migration agent. The direct response, sent by facsimile by the appellant to the Tribunal on 18 October 2001, was a signed typed statement of the appellant. It relevantly stated at its commencement:
"Prior to my first interview I had already mentioned to Father James and Sister Anne that I'm a Christian and have been attending Christian classes."
It then proffered explanations why the appellant had not made the claim at his interview on 13 January 2001 of fearing persecution in Iran because of his firm interest in Christianity. The response sent by his migration agent, also by facsimile on 18 October 2001, included an unsigned statement of the appellant. It commenced:
"I have already mentioned in my first interview that I have been attending Christian classes and I'm a Christian."
The difference in the two statements is not explained, but it is clear that the appellant at the interview on 13 January 2001 did not claim to fear returning to Iran because he had developed a firm interest in Christianity.
15 The Tribunal had before it a letter from Fr Monaghan dated 11 September 2001 which said that Fr Monaghan and Sister Anne Higgins had met with the appellant and a group of friends of his in late 2000 or in the first few days of January 2001, when as a group they asked to be considered for acceptance as members of the Christian church. They then attended Christian worship services, including the appellant, as soon as those services could be arranged. Subsequently, they progressed in their formation stages of Christian initiation. That letter appears to confirm that the appellant reported an interest in Christianity at about the time of, or prior to, his arrival interview on 13 January 2001. The Tribunal records that information in its reasons for decision accurately.
16 The Tribunal also had before it a detailed submission from the appellant's migration agent of 11 October 2001 which claimed that the day after his arrival at the Woomera Immigration Reception and Processing Centre the appellant contacted Fr Monaghan and thereafter attended Fr Monaghan's religious classes. It did not relate the details or circumstances of the contact referred to.
17 Section 425 obliges the Tribunal to invite an applicant to appear to give evidence and present arguments relating to the issues arising in his matter. The notice of invitation to appear must, in accordance with ss 425A and 426, inform the applicant that he may give to the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from the person or persons named in the notice. The Tribunal adopted the appropriate procedure.
18 The appellant in returning to the Tribunal the pro forma notice indicated that he wished evidence to be given to the Tribunal, inter alia, from "Fr Jim Monaghan-Sister Anne" in support of his claim about his conversion to Christianity. The document did not indicate that the proposed evidence would show the appellant had told either Fr Monaghan or Sr Higgins or both in early January 2001 about his firm interest in Christianity whilst in Iran or that his interest in Christianity was the reason why he left Iran.
19 The pro forma document was accompanied by a letter from the appellant's migration agent dated 3 October 2001 describing the request as being for either Fr Monaghan or Sr Higgins to give evidence. Nonetheless, the Tribunal on 10 October 2001 sought clarification from the appellant through his migration agent as to which of Fr Monaghan or Sr Higgins was preferred to give evidence. It also sought information about another witness whom the appellant asked to be called.
20 In fact, Sr Higgins gave evidence at the hearing before the Tribunal. Fr Monaghan did not. His letter of 11 September 2001 was considered by the Tribunal. It does not appear that any request at the hearing was made for Fr Monaghan then to give evidence or for the hearing to be adjourned so that he might do so.
21 Sr Higgins' evidence as recorded by the Tribunal, confirmed that the appellant and others had approached Sr Higgins and Fr Monaghan in early January 2001 and expressed an interest in Christianity. It is recorded in the following terms:
"She said they first met the applicant about the 11th of January. A group of men approached them (or they approached the group of men) and said hello and expressed interest in Christianity. They knew who the Sister and Father Jim were. The group consisted of four or five men including the applicant. It was quite common for groups, or individuals, to approach in this way. But they would have to make a couple more approaches before their interest would be taken seriously. The applicant's group said they wanted to have more instruction in Christianity, in secret. In response to the Tribunal's question, Sister Anne said she was not in a position to say how much the applicant knew of Christianity before he started this instruction. It was not their habit to test an inquirer's existing knowledge. But they operated on the understanding that the inquirers had some experience of Christianity, otherwise why the approach? The applicant must have said something indicating more than a general interest, but the witness could not remember any details. She certainly did learn of his experiences with Christianity (and at this point gave a précis of his claims in relation to events in Iran). She could not recall when she became aware of these events; it might have been as early as January but it might have been later."
She also spoke about her view as to the genuineness of the appellant's commitment to Christianity.
22 The Tribunal also recorded the appellant's evidence at the hearing before the Tribunal as being that he had met Fr Monaghan soon after his arrival at the detention centre and had told Fr Monaghan that he was a Christian convert, and of his fear of other religious fanatics in the detention centre.
23 That completes reference to the material which, on the appeal, was identified as relevant to the appeal. It is also convenient at this point to note how the Tribunal regarded that material. As noted, the Tribunal placed considerable weight on the appellant's failure to claim at his arrival interview on 13 January 2001 that he had a firm interest in Christianity whilst in Iran, and left Iran for fear of the consequences of that interest. The Tribunal rejected his explanations for not having mentioned those claims at the interview. It regarded the claims as having been made belatedly, and put considerable weight on the timing of the making of the claims. It dealt with the suggestion that the appellant had made the claims in early January 2001 to Fr Monaghan as follows:
"The foregoing reason is not affected by the fact that the applicant was among a group of men who had before his interview approached Father Jim and Sister Anne expressing an interest in Christianity. The record does not disclose whether that was a new interest or an interest based on the claimed experiences in Iran. Nor does the fact that this conversation occurred and was not mentioned in the arrival interview prove that a serious claim can in practice be withheld for the reasons the applicant discussed as above (i.e. fear of being exposed, psychological distress, etc.) There are other equally plausible reasons for not revealing the religious inquiry, one possibility being that the applicant was unsure himself whether it would go anywhere."
It also found that the apparently detailed knowledge of Christian beliefs and practices which the appellant had by the time of the hearing by the Tribunal did not constitute persuasive evidence for his claimed experiences in Iran. The appellant appears not to have responded to that inquiry although he responded to a later part of the letter concerning the reason for calling another witness on an unrelated issue.
24 The starting point for the appellant's contentions in respect of both of s 424A and ss 425 and 426 is the proposition that the appellant made the Tribunal aware that he had a conversation with Fr Monaghan in early January 2001 in which he told Fr Monaghan of his interest in Christianity in Iran and that it was the reason he left Iran, and that the conversation with Fr Monaghan was not the conversation with Fr Monaghan and Sr Higgins with a group of detainees to which Sr Higgins referred.
25 Acceptance of both parts of the proposition is vital. The Tribunal clearly apprehended the appellant had claimed that, in early January 2001, he had a conversation with Fr Monaghan and Sr Higgins with a group of detainees at which he had said those things. The Tribunal accepted some such conversation occurred. It did not accept the appellant had then explained his interest in Christianity or it being the reason for him leaving Iran. It was clearly entitled to reach those conclusions on the evidence, including in particular the evidence of Sr Higgins. Counsel for the appellant accepted as much. It was therefore only if the Tribunal was made aware of the appellant's claim of a separate conversation with Fr Monaghan to the effect asserted that the appellant's claims based upon failure of the Tribunal to comply with s 424A, and ss 425A and 426, had any significance.
26 In our view, the appellant's contention fails at that starting point. The material communicated to the Tribunal by submissions, in evidence, and in the documents responding to the notice under s 424A and to the notice under ss 425A and 426 does not clearly convey to the Tribunal a separate conversation with Fr Monaghan to the effect asserted in early January 2001. The evidence of the appellant and the submission of his migration agent on 11 October 2001 is equivocal. It does not refer to two conversations, nor indeed (in the submission) does it claim to have conveyed to Fr Monaghan the making of his claims about why he left Iran. Fr Monaghan's letter of 11 September 2001 refers only to the joint conversation, and the signed document of the appellant of 18 October 2001 is consistent with there having been a joint conversation. The response to the hearing notice given under s 426(2) did not suggest the need to call Fr Monaghan to convey information which Sr Higgins could not give.
27 Consequently, the Tribunal's view that the picture presented by the appellant was of a conversation in early January 2001 at which both Fr Monaghan and Sr Higgins were present, and as being the conversation about which Sr Higgins gave evidence, is not shown to have been erroneous. Indeed, with respect, we consider on the material referred to that it was an appropriate understanding of that material.
28 In the light of that conclusion, it is necessary to refer only briefly to the arguments concerning s 424A and ss 425A and 426.
29 The nature of the obligation under s 424A is discussed in Paul v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 689 (Paul). There is no complaint about the adequacy of the notice given on 10 October 2001 under s 424A, nor that the appellant understood why the topic was relevant to the review. The appellant's response was considered by the Tribunal. It has not been shown to have erred in its understanding of the response in all the circumstances. Moreover, it is unclear whether, in the circumstances, the Tribunal was in fact obliged to give the appellant a notice under s 424A in relation to what he did not say in his initial interview on 13 January 2001. There is an issue whether the absence of a particular claim in information provided by an applicant for a protection visa is "information" within s 424A(1)(a) at all: see Paul at [94]; Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 per Sackville J. It is not necessary to explore that issue further in this matter.
30 If the Tribunal's obligation to seek the appellant's comments on the topic arose because it was obliged to accord procedural fairness to the appellant (as to which: see e.g. Re Refugee Tribunal; Ex parte Aala [2000] FCA 57; (2000) 204 CLR 82), in my (our) view it has complied with that obligation.
31 The obligation under s 426(3) of the Act is to have regard to the appellant's wishes as expressed in determining whether to obtain evidence from persons nominated in the notice given under s 426(2). The Tribunal did so. It sought to clarify whether it was necessary to call both Fr Monaghan and Sr Higgins, or who was the more important witness, having been told by the appellant through his migration advisor that one or other of them should be called. It got no further response. It called Sr Higgins. It had regard to Fr Monaghan's statement in his letter. Section 426(3) makes it clear the Tribunal, having given consideration to such a request, is not obliged to call evidence from each person named in the response. The circumstances are far removed from those which arose in W82 v Minister for Immigration & Multicultural Affairs [2001] FCA 1373 where French J concluded that the Tribunal had failed to comply with s 426(3) by failing to have regard to that applicant's wishes. The material which was presented to the Tribunal was not, as we have concluded, such that the Tribunal could not decide not to call Fr Monaghan except by some capricious whim: cf SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377. It was entitled to conclude that, on the material, Sr Higgins' evidence was an appropriate response to the appellant's request.
32 In any event, as counsel for the appellant acknowledged, the Full Court in NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 (Black CJ, Beaumont and von Doussa JJ, Wilcox and French JJ dissenting) decided that the effect of s 474(1) of the Act is to expand the jurisdiction of the Tribunal so that a decision not in compliance with the procedural prescriptions in Div 4 of Part 7 of the Act does not, by reason of such contraventions, amount to jurisdictional error so as to enliven the Court's power under s 39B of the Judiciary Act to declare the Tribunal's decision to be invalid. The nature of jurisdictional error explained in Craig v South Australia (1995) 184 CLR 163 and in Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 is no longer an appropriate measure of jurisdictional error on the part of the Tribunal. In particular, a failure to comply with those procedural obligations on the part of the Tribunal does not amount to jurisdictional error on the part of the Tribunal: see e.g. NAAV per Black CJ at [30] and per von Doussa J at [650]; NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 at [24]. Counsel for the appellant acknowledged that obstacle to the appeal succeeding. He sought to argue the correctness of the dissenting view of French J as to the proper scope of s 474(1) of the Act, although he acknowledged that the Court must follow the majority decision. For that reason also, in our view, the appeal must be dismissed.
33 Accordingly, in our view the appeal should be dismissed with costs.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tamberlin, Mansfield & Jacobson.