Sarancharkh v Minister for Immigration & Multicultural Affairs - [2001] FCA 1461 - FCA 2001 case summary — Zoe

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Sarancharkh v Minister for Immigration & Multicultural Affairs

[2001] FCA 1461

Federal Court of Australia|2001-10-19|Before: Hill J

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Court

Federal Court of Australia

Decision date

2001-10-19

Before

Hill J

Source

Original judgment source is linked above.

Judgment (19 paragraphs)

[1]

REASONS FOR JUDGMENT 1 The applicant, Mr Mahmood Sarancharkh, applies to the Court for judicial review of a decision of the Refugee Review Tribunal (the "Tribunal") affirming the decision of the respondent Minister for Immigration and Multicultural Affairs not to grant to him a protection visa. 2 The applicant relies upon two grounds in his amended application for review. The first, authorised by s 476(1)(g) of the Migration Act 1958 (Cth) (the "Act"), is that there was no evidence or other material to justify the making of the decision. The ground is particularised as follows: "a. The Tribunal based its decision on a finding of fact that the applicant had an argument with his father and then decided to convert to Christianity, there was no evidence of that fact, and that fact did not exist. b. The Tribunal based its decision on a finding of fact that the applicant's father did not spread a rumour that the applicant had converted to Baha'i, there was no evidence of the asserted fact, and that fact did not exist. c. The Tribunal based its decision on a finding of fact that the applicant's father did not report the applicant to Etalaat, there was no evidence of the asserted fact, and that fact did not exist." 3 The second ground, founded upon s 476(1)(b) of the Act, is that the Tribunal lacked jurisdiction to make the decision. The particulars supplied of this ground were as follows: "a. The Tribunal failed to address a relevant consideration, being whether the applicant's father reported him to the religious police and spread a rumour that he had converted to Baha'i because of the applicant's decision to convert to Christianity."

[2]

[7]

7 The father subsequently filed for divorce from his wife. The mother is presently living in Australia. 8 The mother's version of the fight with the father and the consequences of it was corroborated by the applicant in an earlier statement he made and which was before the Tribunal. The statement notes that the father had informed on the mother "to the authorities" and that thereafter she was summonsed to appear before the Intelligence Service. The reference in the mother's oral evidence to "committee" can thus be interpreted as a reference to either "the authorities" or, perhaps, "the Intelligence Service". 9 The applicant claimed that he too made up his mind to convert to Christianity and that he confronted his father with that. This part of the applicant's claim is summarised by the Tribunal under the heading "Claims and Evidence" as follows: "The applicant claimed that he started to confront his father. He had made up his mind to convert. He told his father that he would follow his mother's path. They had a big fight. His father said that he would not let his son convert and would have him killed. He claimed this took place at his work place which was a manufacturing business owned by his father. His father threatened to send him somewhere he could not so easily convert. He claimed that he thought this meant he would be arrested and detained." 10 It was the applicant's evidence that after the fight the father "told everyone" that he (the applicant) had become a Baha'i. According to the applicant, the father also reported his son to Etalaat (which seems to be a branch of the Security Forces) and accused the applicant of embezzlement from a company owned by the father. 11 The applicant arranged to leave Iran with the aid of a smuggler who, he said, swapped his passport for another one with the applicant's photo inserted in it. He flew to Bali, via Malaysia, and ultimately arrived by boat in Australia, but by then on a Greek passport which he had been given in Malaysia. 12 Since arriving in Australia the applicant has studied Christianity. He has undertaken a correspondence course while in detention in Western Australia and was said now to be a follower of Evangelical Christianity. 13 There was some conflict in the country information as to the consequences for a person who had converted from Islam to Christianity in Iran. The Department of Foreign Affairs and Trade in 1996 (and its views were accepted by the Tribunal) noted that apostasy (ie conversion) was widely reported to carry a "nominal death sentence" but that such a sentence had seldom been in fact imposed. It seemed that converts who went about their devotions "quietly" were generally not disturbed by the authorities.

[12]

the evidence sought to be led on the application for review 19 Before me the applicant sought to adduce additional evidence said to be relevant to proving the existence of the relevant facts which it was said that the Tribunal had found not to exist but which the applicant submitted did. This additional evidence consisted of an affidavit of an uncle of the applicant (the brother of the applicant's mother) recording a conversation with the applicant's father during which the father was said to have stated that he would not give evidence in favour of his son, whom he regarded no longer to be his son, which affidavit was admitted subject to relevance without objection but on the basis that it was tendered only to prove the unwillingness of the applicant's father to give evidence in these proceedings. There was also an affidavit from the applicant's mother and, in addition, another affidavit from the uncle of the applicant. Both of these affidavits were objected to. Further, application was made that I take evidence by telephone from two people in Iran, whose voices another witness could be called to identify. Ultimately, signed statements of the two Iranese witnesses, unsworn, were accepted in evidence but subject to relevance. The evidence was admitted solely to prove that the applicant's father had told each of the two witnesses that the applicant had converted to the Baha'i faith, and that the applicant's father effectively regarded the applicant as no longer being his son but rather as being dead to him. 20 In a trial evidence must be on oath (see s 21(1) of the Evidence Act 1995 (Cth) and cf s 47 of the Federal Court of Australia Act 1976 (Cth)) with the consequence that an unsworn statement would not be admissible in evidence. An application for judicial review is a trial for this purpose. In any event, there was ultimately no objection to the admission of the statements in evidence for the limited purpose referred to, subject to a submission that because the statements were not on oath I should not afford them much weight. As I said in the course of argument, there was no reason why I should disbelieve either witness. What use one might make of the evidence was, however, another matter. The fact that the father did say to both witnesses that the son had converted to the Baha'i faith did not prove that the father spread that rumour to all and sundry and certainly did not prove that the father had told or would tell the authorities (the Etalaat, or otherwise). Ultimately, I do not find this evidence of any assistance. 21 I rejected the affidavit evidence of the mother for two reasons. The first was that so far as it was admissible it did little more than repeat the evidence the mother had given before the Tribunal, or at least that evidence as elaborated upon by the applicant. The only matter it added to the mother's evidence was the statement that the applicant's father had reported the applicant's mother, because of her conversion, to the religious police (that presumably is what was meant by "committee" or "the authorities" so far as the evidence is summarised in the Tribunal's reasons) and accords with the statement of the applicant which was before the Tribunal. There is another reason to reject that evidence so far as it was led to show that the father had in fact reported the son to Etalaat. To accept the evidence on that basis would be to use the mother's evidence as proof of some propensity of the father to report to the authorities a conversion. While propensity evidence may be admitted, it will be only where that evidence has "significant probative value": Evidence Act 1995 (Cth) s 97(1)(b). That will be (see per Lehane J in Zaknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171 at 175-6) where the evidence is such that it: "… rationally affect[s] the assessment of the probability of the relevant fact in issue to a significant extent; ie, more is required than mere statutory relevance."

[14]

the no evidence submission 25 It is a ground of review of a decision of the Tribunal under s 476(1)(g) of the Act that there was no evidence or other material before the Tribunal to justify the making of the decision. The provision has its immediate origin in s 5(1)(h) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the "ADJR Act"). That section, in turn, reflects the traditional common law principle "that an absence of evidence to sustain a finding or inference of fact gives rise to an error of law": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 358. 26 Many administrative decisions are preconditioned, expressly or otherwise, upon the existence of a particular fact or series of facts. If a decision of this kind is the subject of judicial review on the "no evidence" ground, the question will be whether there was evidence before the decision-maker to justify the decision made as to whether the particular fact, or series of facts, exists or does not exist, depending on the way the decision-maker has determined the question, as the case may be, should be framed. 27 However, there is a distinction between a case where the making of the decision depends upon the actual existence of a state of facts and one where the decision depends on the decision-maker forming a particular state of mind (or being satisfied) as to that state of facts: see Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 at 466 per Black CJ and Karalis v Australian Community Pharmacy (1998) 90 FCR 473 at 480ff. A decision whether to grant a protection visa is in the latter category. The distinction could be important in a particular case. It would not seem to be of particular significance where the decision-maker determined that the actual fact of which the decision-maker was to be satisfied existed. It would be significant where the decision-maker was not satisfied that the particular fact situation existed. 28 In a case such as the present, the "decision" which the Tribunal has to make is whether the Tribunal is satisfied that the applicant is a person to whom Australia has protection obligations, not whether the person is in fact a person to whom Australia has protection obligations. Expressed in more concrete terms, the decision of the Tribunal will be its satisfaction or lack of satisfaction as to whether the applicant has a well-founded fear of persecution for a Convention reason rather than whether the applicant in fact has a well- founded fear of persecution. Although the distinction may be criticised as semantic, it is nevertheless a real one. Likewise, the statutory issue raised by s 476(1)(g) of the Act is not whether there was no evidence or other material before the Tribunal to justify the Tribunal deciding that the applicant does not have a well-founded fear of persecution for a Convention reason, but rather whether there was no evidence or other material before it to justify its decision that it was not satisfied that he does. 29 The no evidence ground in s 476(1)(g) of the Act is qualified by s 476(4), which has its origin in s 5(3) of the ADJR Act. Section 476(4) of the Act provides as follows: "The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) … (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." The first limb (that in s 476(4)(a)) is not relevant in the present case.

[15]

30 The history of the comparable no evidence ground in the ADJR Act is discussed by Wilcox J in Television Capricornia Pty Ltd v Australian Broadcasting Tribunal (1986) 13 FCR 511. His Honour points out that the applicant for review is required in a case falling within the comparable provision to s 476(4)(b) to show more than that there was no evidence before the decision-maker of the fact found or assumed as the basis of the decision. The applicant is required, in what may be a heavy burden, to negative the fact. There is room for argument that s 476(4)(b) can have no application and thus the no evidence ground will not be made out where the statutory context is the formulation of a state of mind such as "satisfaction" concerning the facts rather than the existence of some fact. However, I am prepared to accept for the purpose of this case that there is no relevant distinction. 31 The combination of s 476(1)(g) and the qualification in s 476(4)(b) makes it clear that in order to succeed on the no evidence ground in a case such as the present an applicant must show that: (1) There was no evidence or other material to justify the making of the decision. (2) The decision was based upon the existence of a particular fact. (3) The particular fact upon which the decision was based did not exist. (And, see generally, Minister for Immigration and Multicultural Affairs v Indatissa [2001] FCA 181 at [27], where a Full Court of this Court comprising Sundberg, Emmett and Conti JJ pointed out additionally that s 476(4)(b) does not constitute a definition of what will amount to there being no evidence or other material to justify the making of the relevant decision.) 32 For my part, I see no particular reason why the order in which these three matters are considered has any real relevance since all of them must be satisfied before an applicant for review can succeed: see Minister for Immigration & Multicultural Affairs v Al-Miahi [2001] FCA 744 at [35] and Jegatheeswaran v Minister for Immigration & Multicultural Affairs [2001] FCA 865 at [31]. Counsel for the applicant notes, however, that the question of the order in which these matters should be considered has been the subject of argument in Rajanayake v Minister for Immigration and Multicultural Affairs, where judgment has been reserved (14 August 2001). There is no suggestion by either counsel that the order in which I consider these matters has significance in the present case. For convenience, I propose to leave until later the consideration of the first of these matters. 33 As already noted, the particular facts upon which the decision was said to be based and which were said not to exist were: (1) A finding of fact that the applicant had an argument with his father and then decided to convert to Christianity ("the alleged chronological error"). (2) That the applicant's father did not spread a rumour that the applicant had converted to Baha'i ("the Baha'i error"). (3) That the applicant's father did not report the applicant to Etalaat ("the Etalaat error"). 34 It is convenient to consider each of these particularised matters separately in relation to the issues raised by s 476(4)(b).

[16]

The alleged chronological error 35 There is a threshold question to be determined before the applicant can succeed on this submission, namely, whether the Tribunal did find as a fact that the applicant had an argument with the father and that the decision to convert to Christianity was made after that argument. If the Tribunal did make that finding of fact, then the applicant would, arguably, nevertheless lose on this point, because there is no admissible evidence before the Court which would enable me to decide, one way or another, whether the decision to convert was actually made before the argument occurred. Indeed, such a finding would depend upon what was meant by the words "decided to convert". Certainly, it is common ground between the parties (and indeed the Tribunal held as much) that actual conversion did not occur until after the argument between the applicant and his father. I would certainly have little difficulty in inferring that the applicant had formed the intention to convert before confronting the father. Whether that is what the Tribunal meant by "decided to convert" may be a different matter. Nothing irrevocable was done by the applicant until after the argument. 36 The difficulty inherent in this threshold question was sought to be met by counsel for the applicant seeking to argue that the relevant finding of fact was not that there had been first an argument and then a decision to convert but rather that there had been a claim by the applicant that the order of events was first the argument and then the decision to convert. But, that "fact", ie the making of the claim, it was said was untrue and, thus, "did not exist". 37 It will be recalled from the passage set out at [9] that the Tribunal early in its reasons set out precisely what it was that the applicant had claimed, namely, that he had told the father that he would follow the mother's path to conversion and that only then had there been a fight between them. The passage complained of occurs some pages later in the Tribunal's reasons. In it, the Tribunal says "[h]e (the applicant) claimed that he had a fight with his father and then decided to convert to Christianity". The relevant passage is expressed in language which seems to refer to what the claim of the applicant was, rather than the factual basis of that claim. If the passage is to be read as suggesting that this is the claim the applicant made it is clearly wrong and the Tribunal's early discussion of what the applicant's claim was demonstrates without more that a finding of the making by the applicant of such a claim is a finding of a fact that does not exist. 38 However, the reasons of the Tribunal must be read as a whole. It is unfair to the Tribunal and, indeed, impermissible to take a particular paragraph of the Tribunal's reasons out of the context of the whole reasons. Likewise, it must be said, reasons of the Tribunal are not to be examined minutely with an "eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287. As I have already pointed out, the Tribunal had, before turning to its findings, set out, and correctly, exactly what it was that the applicant claimed. It is highly unlikely that the Tribunal forgot entirely what it had written but a few pages earlier and intended to restate the claim in a different (and wrong) way. It is obvious enough in the passage complained of that the Tribunal accepted that the argument between the applicant and his father, assuming it took place, was one that took place over the question of the applicant's conversion. It is common ground that the applicant had not in fact converted to Christianity prior to leaving Iran. In my view, notwithstanding that the language of the Tribunal may not be precise or, indeed, may be described as "loose", it is not correct to say, having regard to the whole of its reasons, that the Tribunal found as a fact that the applicant claimed first to have had an argument, presumably about some subject having nothing to do with Christianity (or, for that matter, religion), and then decided to convert to Christianity at a later time. What the Tribunal probably meant, in the passage complained of, was that there had been an argument with the father over the question of conversion but that actual conversion did not take place until after the applicant left Iran. That is consistent with what the Tribunal said the claim was earlier in its reasons. It is consistent also with what the applicant claimed and with what the applicant now says the facts were. 39 In so far as it is suggested that the Tribunal found as a fact that the actual order of events which happened was argument and thereafter decision to convert (there having been no decision to do so earlier), I am of the opinion that the Tribunal did not so find. As already noted, there is no evidence before me in admissible form which goes to the correctness or otherwise of the actual order of events. It is for these reasons that the submission on the chronological error cannot succeed.

[17]

The Baha'i error 40 The second matter particularised is what is said to be a finding of fact by the Tribunal that the applicant's father did not spread a rumour, effectively to all and sundry, that the applicant had converted to the Baha'i faith. It is the applicant's submission that I should find on the evidence before me that the father in fact did spread (and presumably to all and sundry) a rumour that the applicant had converted to the Baha'i faith. The significance of the applicant's claim that such a rumour was spread, so far as it concerned the applicant's case, was presumably that the applicant, as a result, was more likely to come to the attention of the authorities for having converted (albeit to Christianity, not to the Baha'i faith) and thus objectively had reason to fear persecution for a Convention reason. 41 The Tribunal's reasons note, in the passage set out at [16], that the applicant claimed that his father had spread a rumour that the applicant had converted to Baha'i. It is not suggested that the applicant did not make such a claim. It is common ground that he did. The Tribunal then continues by saying that it did not accept that the father would have taken this step, ie would have spread such a rumour. The Tribunal reached this conclusion, presumably, by reference to the Tribunal member's views on what a fanatical Muslim father would be likely to have done (or, in this case, not done). Whether this Court would have been so ready to conclude that a fanatical believer of any faith would not spread rumours about his son and to the detriment of the son is of no matter. Decisions on fact are for the Tribunal, not this Court. 42 The threshold question is whether the Tribunal, by not accepting the claim which the applicant made, did make a finding of fact as to the existence of the matter claimed to be the case by the applicant, that is to say, the subject matter of that claim. Let me illustrate. 'A' may give evidence that he went to Melbourne on Friday. The Tribunal may not believe 'A'. It decides that it does not accept the evidence. It may do so because it is improbable, because A's evidence is inconsistent with some other evidence or because of a view taken as to the credit of A. It does not necessarily find by not believing 'A' that 'A' did not go to Melbourne on Friday. The Tribunal merely finds that 'A' has not proved he went to Melbourne on Friday or, perhaps in a case like the present, that it is not satisfied that A went to Melbourne on Friday. There is much to be said for this argument. If it is correct then the applicant must fail on this ground too. 43 There is a second reason, however, why the submission must fail on the current state of the law. There are decisions of single Judges of this Court, namely, Abila v Minister for Immigration and Multicultural Affairs [2001] FCA 1186 at [13] to [24], N258/00A v Minister for Immigration and Multicultural Affairs (2000)101 FCR 478 at 483-6, Aung v Minister for Immigration & Multicultural Affairs [2000]FCA 1562 at [38], Mehandoost v Minister for Immigration and Multicultural Affairs [2001]FCA1182 at [7] and Perchine v Minister for Immigration and Multicultural Affairs [2001]FCA 168 at [20], which have held that s 476(1)(g) does not apply where the finding is of the non-existence of facts. Rather, it has been held to have application only where there is a finding by the Tribunal as to the existence of a fact. I should mention that there is an expression of opinion the other way (it is obiter dicta) by Carr J in Kheirollahpoor v Minister for Immigration and Multicultural Affairs [2000] FCA 1350. However, that opinion seems to have been based upon a view that the Full Court of this Court in Guden v Minister for Immigration and Multicultural Affairs [2000] FCA 236 decided the question. I am of the view that it did not. 44 Accordingly, I would follow the decisions of single Judges of this Court unless of the view that they were clearly wrong: see Brooks v Commissioner of Taxation (2000) 100 FCR 117 at 121, Transurban City Link Ltd v Allan (1999) 95 FCR 553 at 560-561 and Chamberlain v R (1983) 46 ALR 493 at 498 per Bowen CJ and Forster J. 45 The decision of Katz J in N258/00A v Minister for Immigration and Multicultural Affairs (2000)101 FCR 478 is certainly not clearly wrong. Indeed, for the reasons his Honour gives, the opposite result can only be reached by adopting "an extremely strained construction" both to the language of s 476(1)(g) of the Act as well as the language used in both limbs of s 476(4). The argument that a different construction should be adopted depends upon the question of policy inherent in excluding from s 476(4)(b) findings that facts do not exist when they do. It may well be that the legislature took the view that while the Tribunal is required to make findings on material facts, that is to say facts which the Tribunal believes to be material, it is not required to make findings about the non-existence of facts. Indeed, as I have earlier suggested, tribunals are more likely merely to find facts not proved, rather than to find the non-existence of facts. Whether the policy behind limiting the application of s 476(4)(b) is capable of being explained in this way need not be decided in this case, if only because I would follow the quite significant number of decisions which I have listed which have decided that s 476(4)(b) applies only to findings of positive facts. 46 While that suffices to dispose of this submission, it should be noted that there are two further difficulties in the way of the applicant succeeding with it. 47 First, there is the question whether the applicant has shown by admissible evidence (see per Katz J at first instance in Arudselvan v Minister for Immigration and Multicultural Affairs [1999] FCA 622 at [68] to [71], the appeal from which decision was dismissed by a Full Court, see [1999] FCA 1726, but without reference to this point) that the father did spread the rumour that the applicant had converted to Baha'i to all and sundry. What the applicant has proved by the evidence of the two witnesses in Iran (admitted subject to relevance) is that each of them was told by the father that the applicant had converted to Baha'i. However, logically the applicant does not prove that the father spread a rumour of this kind widely by calling two witnesses who state (not on oath) that they heard the father say words indicating that the son had converted to the Baha'i faith. Particularly where the statement does not necessarily give the whole conversation or, for that matter, the complete context of it. 48 The second difficulty the applicant has concerns whether it is correct to say that the Tribunal's decision is based, as that word is used in the authorities, upon a finding that the father did not spread this rumour. A decision will be based upon the existence of a particular fact where a finding of that fact is critical to the decision. But, this does not preclude a decision being found to be based upon the existence of more than one fact. Rather, a decision will be based upon "the existence of each particular fact that is critical to the making of the decision". Thus, a decision may be based upon a particular fact where that fact is but "[a] small factual link in a chain of reasoning … and there are no parallel links": see per Black CJ in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221. Or, to repeat the summary of the learned Chief Justice at 222: "… A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion." 49 In my view, the Tribunal's decision is not in the relevant sense based on any finding about the father spreading the Baha'i rumour. Whether the father did or did not spread that rumour widely was not critical to the Tribunal's decision. Indeed, it is not referred to at all in its reasoning. Rather, the decision would seem to be based upon the view that the applicant would not objectively need to fear persecution if he returned as a Christian to Iran because persons who convert, as long as they go about their devotions quietly, are not subject to persecution in Iran. There is nothing in the Tribunal's reasons which indicates that its decision is in any way dependent upon whether or not the father told persons he met that the son had converted to the Baha'i faith.