SBAJ v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-04-16|Before: Marshall J, Conti JJ

REASONS FOR JUDGMENT THE COURT: 1 This is an appeal from a judgment of Marshall J of 31 May 2002 dismissing an application for judicial review of a decision of the Refugee Review Tribunal ("RRT") (SBAJ v Minister for Immigration & Multicultural Affairs [2002] FCA 697). 2 The appellant was unrepresented before the primary judge and his application for review by the Court raised no question of law. His Honour disposed of the matter shortly, saying at [14] - [16]: "It is unnecessary for present purposes to consider whether the current application is rendered nugatory by s474 of the Act. The reason for that is that no submissions have been advanced on behalf of the applicant which disclose any judicially reviewable ground upon which the decision of the RRT might be overturned. In his affidavit filed with his application the applicant raised arguments concerning why certain of the RRT's findings of fact should not have been made. He also raised a concern about the quality of the translation service made available to him at the hearing before the RRT. As is pointed out in the respondent's written outline of argument, however, those concerns have not been [raised] beyond a mere assertion. In oral submissions today, the applicant repeated matters which had been put to the RRT. The Court is not in a position to review the RRT's decision on the merits, as was explained to the applicant at the hearing. I have considered the RRT's reasons for decision with care and I am unable to discern that any legal error has been committed by the RRT which this Court may have been able to remedy, putting to one side the effect of the 2001 Act." 3 The original Notice of Appeal filed by the appellant claimed that: "I was not given time to speak for myself" 4 It is not clear whether this was a complaint about the hearing before the primary judge or a repetition of his complaint about the RRT. 5 The decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24 was given on 4 February 2003, not long before we heard the appeal. Thereafter an amended Notice of Appeal was filed which sought to take advantage of the broader approach taken by the High Court in S157 as to the interpretation of s 474 of the Migration Act 1958 (Cth) ("the Act"). 6 The revised grounds of appeal are: "The Court below failed to find any legal error on the part of the RRT which it might have remedied. The error of law which the Court should have recognised lay in the unreasonableness of the method by which the RRT reached the conclusion that the Appellant's claim that a warrant had existed for his apprehension was untrue. The error of law is one going to jurisdiction. Particulars The Appellant was disbelieved by the RRT as to the existence of the warrant on the basis of his general unreliability as a witness, but the RRT had the capacity to test the veracity of his claim for itself by requesting Australian Department of Foreign Affairs and Trade officials in Iran to make enquiry as to whether such a warrant had ever been made out. The further error of law which the Court below should have recognised lay in the RRT's failure to make a finding as to the real risk of future persecution which might result from the Appellant becoming 'a sincere Catholic neophyte'. The error constitutes a misunderstanding of law and a failure to take account of relevant considerations, both constituting errors of law going to jurisdiction. Particulars The RRT claimed to have 'fully considered' the prospect of both the Appellant being a sincere convert to Catholicism, and the implications of being a member of such a church. The RRT failed to make a finding as to whether the Appellant would engage in proselytising, and if he did, what the consequences would be. The further error of law which the Court below should have recognised lay in the RRT's assertion that it could find no evidence of Iranian Catholics being involved in proselytising, or of being punished for converting to Catholicism. This is in flat defiance of the material cited by the RRT from DFAT which states that 'the Catholic [and other named churches] have tended to face greater problems [than the Armenian and Assyrian churches] with the authorities on account of their links with the West and the greater importance placed on proselytising.' The use of evidence by the RRT is so illogical as to amount to error of law going to jurisdiction."

The nature of the appellant's claims 7 As Marshall J summarised matters at [2]-[3]: "The applicant is a citizen of Iran. He is currently being held in detention at the Woomera Detention Centre. He entered Australia on 20 April 2001 and applied for a protection visa on 22 June 2001. He is a single man of the Shi'ite Muslim faith who has converted to Catholicism whilst in detention. The applicant made the following claims before the RRT in written material provided to it:

two of his cousins had been imprisoned in Iran due to involvement with a political group known as the Mujahedin-E-Khalq ("the MKO");
because his cousins were known to the authorities he was under scrutiny by the authorities in his employment with an oil company which was owned and run by the State;
he was dismissed for criticising the government at work;
whilst he was campaigning to be reinstated a warrant for his arrest was presented to his family; and
he decided to leave Iran two months prior to the date of his departure." 8 The appellant further claimed that he would face persecution as a result of his conversion in Australia to Christianity and, in particular, to Catholicism.

Failure of the Tribunal to inquire further of its own motion 9 The first matter raised by the amended Notice of Appeal is whether the Tribunal committed error by disbelieving the appellant as to the existence of the "warrant" (or summons, as it was sometimes called by the appellant, speaking through an interpreter) without checking with the Iranian authorities. This was said to be a species of Wednesbury

unreasonableness. For the doctrinal basis of this criticism to be valid, there would need to be positive answers to the following questions: (a) does the doctrine of jurisdictional error constituted by Wednesbury unreasonableness apply where an assessment of facts rather than an exercise of discretion is involved (see per Gummow J in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 650?); (b) can a failure by an administrative tribunal to make its own enquiries in some circumstances evidence such unreasonableness?; and (c) does the category of "jurisdictional errors" which was held in S157 not to be put beyond judicial review include all the kinds of jurisdictional errors contemplated in Craig v South Australia (1995) 184 CLR 163? 10 Assuming, without deciding, that affirmative answers should be given to those three questions, there was in our view nothing unreasonable in the Tribunal's not having made the suggested enquiry itself. Among other things, to have done so would expose the appellant's application for refugee status to the Iranian authorities. It appears that it did not occur to the Tribunal to make such an enquiry but it would not have occurred to a great many other reasonable decision-makers to do so, either. The authority relied upon by counsel for the appellant - Sun v Minister for Immigration (1997) 81 FCR 71 at 104 and 119 - was relevantly based upon a view as to the effect of s 420 of the Act which was subsequently disapproved by the High Court in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611. There is some debate as to whether, and in what circumstances, a Tribunal is bound to make its own inquiries (see the survey of the authorities by Allsop J in Azzi v Minister for Immigration & Multicultural Affairs (2002) 195 ALR 166) but in our opinion there was no obligation in the present case. In any event, it is not clear to us, let alone obvious, that the information would readily have been made available if requested, c.f. Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549. 11 The criticism is without substance.

"Not satisfied" formulation 12 The next criticism stems from the Tribunal Member's repeated use of the formula that he was "not satisfied" of various matters, especially the genuineness of the appellant's claimed religious conversion. In particular, the suggestion is that, bearing in mind that such a "well-founded" fear of persecution may be constituted by a "real chance" that such persecution might eventuate, the Tribunal thereby failed to ask itself the correct question: is there such a well-founded fear? 13 Reliance was placed on the decision of the Full Court in N1202/01A v Minister for Immigration & Multicultural Affairs [2002] FCA 403. In that case the Court took the view at [53] that: "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." 14 The Court continued at [54]: "… 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." 15 The Court's conclusions were, of course, expressed about a particular decision. 16 Here, the decision, read as a whole and in a reasonably generous effort to understand what the Tribunal member was really saying (that is, "beneficially"), makes it clear that he made firm adverse findings against the appellant. 17 The Tribunal said: "The Tribunal has considered all of the Applicant's claims, and all of the other relevant material. It is not satisfied that there are any cumulative implications, given the overwhelming lack of credibility in the Applicant's claims. (emphasis added) …

As to the present Applicant, the Tribunal finds that he is not a reliable witness in the present matter. In short, his 'political opinion' claims are riddled with revisions and this pattern appears to have continued into the sudden birth of new claims about "religion", which are also very poorly sustained. … There are so many problems in the Applicant's evidence that even ignoring one or two issues does not help his position at all." 18 In our view the Tribunal member, despite resort to the formula "I am not satisfied", decisively rejected the notion that there was any real prospect that the appellant's claims were true. In N1202/01A, by contrast, the Tribunal did not find that the appellant was an untruthful witness: [43], [44] and [53] (c.f. in a somewhat similar situation Katz J in A v Minister for Immigration & Multicultural Affairs [1999] FCA 227 at [23]-[27). 19 It remains true, however, that a clear and unambiguous expression of decisive findings would be desirable. 20 The appellant's third point was based on a seeming contradiction in the Tribunal's reasons. As background, the Tribunal said: "… the Roman Catholic Church … barely exists as such in Iran, Catholicism having survived there in the form of the Chaldean Rite. The Chaldean Catholic Church in Iran, however, is evidently a viable one." 21 The Tribunal cited an Australian Foreign Affairs Department report: "Iranians who had based their asylum applications on their conversion from Islam to Christianity would, in almost all cases not suffer particular problems if returned, unless they declared to the authorities on return their new religious affiliation. … While the traditional Christian communities (Armenian and Assyrian) do not proselytise and even discourage those Muslims who may express an interest in conversion, the Catholic, Protestant and Evangelical missionary churches have tended to face greater problems with the authorities on account of their links with the West and the greater importance placed on proselytising. Any action interpreted as manifesting an intent to 'influence a Muslim to convert faith' is a serious criminal offence both for the priest and the Muslim concerned. Definition of this provision in the criminal code is moreover arbitrary and ambiguous. Its application is intended to harass. Converts are generally tolerated as long as they maintain a very low profile." (emphasis added) Elsewhere the Tribunal accepted third party information that " 'Assyrian' Christians are divided into two branches, the (Catholic) Chaldean and the (Orthodox) Assyrian Church of the East". 22 The Tribunal continued: "The Tribunal did not establish whether the Applicant considered himself as one with the Chaldeans or with the Roman Catholics. Since he was allegedly studying under the Roman Catholic Church in Australia, it seemed logical to consider that he might be closer to the relatively few Roman Catholics in Iran. However, there was no reason to assume he would not have an affinity with the Chaldeans were he living there. The Tribunal could find no evidence of Iranian Catholics being involved in proselytising, let alone advocating it. It could find no evidence of their being punished for converting to Catholicism, Roman or Chaldean. Given that the Chaldean Church was quite prominent in Iran, and given both its contacts with other countries and those of Iran's Roman Catholics, the Tribunal considered it reasonable to assume that information about actual persecution of members of these communities would be available if such persecution were really being perpetrated. It could find no evidence of such treatment and the Applicant provided none either." (emphasis added) 23 Thus, on the one hand, the Tribunal appeared to accept that the non-Chaldean Catholic church has tended to face greater problems partially because of the importance placed by it on proselytising but, on the other, the Tribunal says that there was no evidence of Iranian Catholics being involved in proselytising, let alone advocating it. It may be that the contradiction is only a seeming one and that the Tribunal was intending to take the Foreign Affairs report with a grain of salt. 24 However, let it be assumed that the Tribunal did misunderstand some of the evidence, and that, in the circumstances, this might sound in remediable jurisdictional error. There is nevertheless a short answer to the attempt to impugn the Tribunal's conclusion that the appellant would be in no danger because, at least partly, his chosen Church is unlikely to involve itself or an adherent such as him in proselytising in Iran. That answer is that any such error was irrelevant. The Tribunal had a separate reason for rejecting as well founded any fear of possible persecution on that score. The separate reason was the rejection of the appellant as a reliable witness on the scope of his claimed conversion as on the other significant issues. 25 This attack too must fail. 26 The appeal is dismissed and the appellant is to pay the respondent's costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate: Dated: 16 April 2003 Counsel for the Applicant: Mr S Churches

Solicitor for the Applicant: Refugee Advocacy Service of SA Inc

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