FEDERAL COURT OF AUSTRALIA SAAX v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 356 Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Minister for Immigration & Ethnic Affairs v Guo (1996) 197 CLR 556 Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220 Paul v Minister for Immigration & Multicultural Affairs (2001) 64 ALD 689 Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 Re Refugee Tribunal; Ex parte Aala [2000] FCA 57; (2000) 204 CLR 82) W82 v Minister for Immigration & Multicultural Affairs [2001] FCA 1373 SCAZ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1377 Craig v South Australia (1995) 184 CLR 163 NAAV v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 228 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration & Multicultural & Indigenous Affairs v Yusuf (2001) 206 CLR 323 NABM of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 294 SAAX v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S.141 of 2002 TAMBERLIN, MANSFIELD & JACOBSON JJ 19 NOVEMBER 2002 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.141 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SAAX APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: TAMBERLIN, MANSFIELD & JACOBSON JJ DATE OF ORDER: 19 NOVEMBER 2002 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The appellant pay to the respondent costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S.141 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: SAAX APPELLANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT JUDGES: TAMBERLIN, MANSFIELD & JACOBSON JJ DATE: 19 NOVEMBER 2002 PLACE: ADELAIDE REASONS FOR JUDGMENT THE COURT INTRODUCTION 1 This is an appeal from a decision of O'Loughlin J given on 17 May 2002. His Honour dismissed an application under s 39B of the Judiciary Act 1903 (Cth) to set aside a decision of the Refugee Review Tribunal (the Tribunal) given on 26 October 2001. The Tribunal affirmed a decision of a delegate of the respondent of 21 August 2001 not to grant to the appellant a protection visa under the Migration Act 1958 (Cth) (the Act). The appellant applied for a protection visa under the Act on 19 July 2001 following his arrival in Australia some months earlier. 2 The decision of the Tribunal turned upon whether it was satisfied the appellant was a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as Amended by the 1967 Protocol Relating to the Status of Refugees (the Convention): s 36(2) of the Act. Resolution of that issue depended in turn upon whether the Tribunal was satisfied that the appellant is a refugee as defined in Art 1A(2) of the Convention, that is a person who was unwilling to return to and avail himself of the protection of his country of nationality by reason of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. 3 The appellant is a national of Iran who claimed before the Tribunal to have a well-founded fear of persecution if he were to return to Iran because of his religion. He said he had developed an interest in Christianity whilst living in Iran, and had since his arrival in Australia formally converted to Christianity. He had been brought up in a strict Islamic family but had become disaffected with Islam. He had developed a close friendship with a young Christian woman. He claimed that his father had threatened to report to the authorities his apostasy as he disapproved of the friendship and of the appellant's developing interest in Christianity. The Tribunal was satisfied that, if the appellant was in fact an apostate and would continue to practise the Christian religion in Iran if he were to return there, he would have a well-founded fear of persecution by reason of his religion. the tribunal's decision 4 The Tribunal affirmed the decision not to grant the appellant a protection visa because it did not accept that the appellant developed a real interest in Christianity whilst in Iran, so that he was not an apostate, and it also did not accept he has now genuinely converted to Christianity or has a sustainable belief in Christianity. It did accept that the appellant had been brought up in a strict Islamic religious family, and that he himself had been unenthusiastic about Islam, but it did not take the additional step of accepting that the appellant had any serious interest in Christianity whilst he was in Iran. It did not accept that he had, as he claimed, a Christian girlfriend or that he had, as he claimed, argued with his father about his interest in Christianity or that his father had threatened to report him to the authorities by reason of his interest in Christianity. It did not accept that the appellant would remain a Christian if he were to return to Iran. It also did not accept that there was any real basis for the appellant fearing persecution if he were to return to Iran by reason of his having studied Christianity and having ostensibly converted to Christianity in Australia, or by reason of being a returned asylum seeker from Australia. Apparently as a complementary or additional reason for its decision, the Tribunal applied s 91R(3) of the Act. It provides that, in determining whether a person has a well-founded fear of being persecuted for a Convention reason, any conduct engaged in by the person in Australia must be disregarded unless the person satisfies the Tribunal of having engaged in the conduct otherwise than for the purpose of strengthening the claim to be a refugee. The Tribunal, in terms of that provision, was not satisfied that the appellant converted to Christianity whilst in Australia for a purpose other than to strengthen his claim to be a refugee, and so it did not have regard to any conduct in that respect whilst he had been in Australia. the decision at first instance 5 The application for review to the Court expressed extensive grounds, which appear to have been addressed compendiously by the learned judge at first instance. After referring to the appellant's claims to the Tribunal, and the Tribunal's reasons for decision, his Honour identified two substantial matters which were argued on the application for review. 6 The first was whether the Tribunal should have allowed for the possibility that its findings adverse to the appellant's claims to have developed a real interest in Christianity whilst in Iran, and to have converted to Christianity in Australia, may have been incorrect: see Minister for Immigration & Ethnic Affairs v Guo (1996) 197 CLR 556 and Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220. His Honour concluded that the Tribunal had not erred by failing to consider that circumstance because it had no real doubt about the conclusion that it had reached. 7 The second general ground argued was that the Tribunal had failed to consider relevant material, including the appellant's explanation as to why he had not at his arrival interview shortly after his arrival in Australia, namely on 13 January 2001, complained then that he feared persecution by reason of his strong interest in Christianity whilst in Iran. 8 The Tribunal, in rejecting the appellant's evidence on that topic had placed considerable weight on the appellant's failure to make such a claim when he had first been interviewed on 13 January 2001 shortly after his arrival in Australia. He said then that he had left Iran because of the lack of freedom in clothing, personal appearance and social life, and that nothing personally had happened to him although he disliked those sorts of restrictions. He also said he left Iran because of the economic circumstances, including financial impediments upon his entry to University and limited employment prospects. He said he did not like Iran because of the difficulties in achieving a satisfactory quality of life there. He did not refer at that time to his firm interests in Christianity. 9 The appellant subsequently proffered explanations to the Tribunal for the failure to mention his interest in Christianity during that initial interview. The Tribunal did not accept those explanations. It said that it: "… does not accept that arrival interviews are conducted in a way which discourages applicants from telling of their specific fears in relation to their country of original or, to put it in the converse, that they are encouraged only to make general statements and save their specific concerns for later. It does not accept that a person who had genuine fears of persecution would, due to uncertainty about the process or concern about confidentiality, deliberately refrain from telling of that critical incident or fact that will cause them to be harmed if they go home. It does not accept that such a person would positively obscure his case by saying that nothing had happened to him. Nor does the Tribunal accept that the applicant was suffering from memory loss or any other physical or psychological symptom sufficiently serious to make such a scenario unlikely." 10 The learned judge at first instance was not persuaded that the Tribunal had erred in any reviewable way in reaching that conclusion, as it had considered in an appropriate way the appellant's evidence and his explanations. the grounds of appeal 11 The only grounds of appeal argued by counsel for the appellant attacked the learned judge's conclusion on the second general ground only. He did so in a limited way. It was contended that the Tribunal erred in failing to take evidence from Fr Jim Monaghan, a Catholic priest providing religious support to persons detained at the Woomera Immigration Reception and Processing Centre. His evidence was said to be crucial to the appellant's claims because, it was argued, it would confirm the appellant's evidence that he had told Fr Monaghan in early 2001, shortly before his arrival interview on 13 January 2001, of having developed a firm interest in Christianity whilst he was in Iran and of the circumstances in which he did so. Such evidence would therefore remove or largely remove the significance the Tribunal placed on the appellant's failure to make claims at his arrival interview about his firm interest in Christianity whilst in Iran. The Tribunal placed considerable weight upon the fact that the appellant otherwise appeared only to have made those claims belatedly, when he applied for a protection visa in July 2001, some seven months later. 12 Hence, the significance of Fr Monaghan's claimed evidence was that it countered the suggestion of "recent invention" by the appellant about his interest in Christianity whilst in Iran, upon which the Tribunal placed weight in finding the appellant's claims to be not credible. It is claimed that the evidence of Fr Monaghan would have confirmed that the appellant had mentioned to Fr Monaghan at about that time that in fact the reason for his departure from Iran was his interest in Christianity and the potential consequences to him of that interest. 13 Counsel for the appellant contended that the Tribunal's failure to call Fr Monaghan to give evidence in the circumstances amounted to: (1) a failure to comply with s 424A of the Act, and (2) a failure to comply with ss 425A and 426 of the Act. He acknowledged that, if it were established that the Tribunal had failed to comply with those procedural directions embodied in the Act, the appellant would also have to overcome the hurdle of demonstrating such failures amounted to jurisdictional error on the part of the Tribunal in the face of s 474(1) of the Act, that is the privative clause provision. 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. Associate: Dated: 15 November 2002 Counsel for the Appellant: Mr D Agresta Solicitor for the Appellant: Condello & Co. Counsel for the Respondent: Mr K Tredrea Solicitor for the Respondent: Sparke Helmore Date of Hearing: 13 November 2002 Date of Judgment: 19 November 2002