SBAF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 372

FEDERAL COURT OF AUSTRALIA

SBAF of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 372 SBAF OF 2002 AND SBAG OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 157 OF 2002

DRUMMOND, NORTH AND DOWSETT JJ 14 NOVEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 157 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SBAF OF 2002 AND SBAG OF 2002

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: DRUMMOND, NORTH AND DOWSETT JJ

DATE OF ORDER: 14 NOVEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed, with costs.

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 157 OF 2002

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SBAF OF 2002 AND SBAG OF 2002

APPELLANTS

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: DRUMMOND, NORTH AND DOWSETT JJ

DATE: 14 NOVEMBER 2002

PLACE: SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a decision of a judge of the Court who dismissed the appellants' applications for review of the decision of the Refugee Review Tribunal ("the Tribunal"), which affirmed the decisions of the delegate of the Minister not to grant the protection visas the appellants sought. The Tribunal's decision was given after October 2001. It is therefore the Migration Act 1958 (Cth) in its current form which governs this case. 2 The appellants, both Iranian citizens, are husband and wife. They claim refugee status essentially because they converted to Christianity from the Muslim religion while they were living in Iran. They fear persecution by the authorities for their apostasy if they were to be returned to Iran. They made other claims but those claims only served to support the claim based on their having changed their religion. 3 The Minister's delegate accepted that each had converted to Christianity, but the delegate rejected their claim to protection visas because the delegate considered that they did not have sufficiently high profiles to attract the attention of the authorities, even though Iranian law provides the death penalty for those convicted of apostasy. 4 As the learned primary judge noted, the Tribunal took a different course. It accepted that an Iranian citizen who converted to Christianity could for that reason suffer serious punishment. But the Tribunal did not accept as credible the appellants' claims that they had in fact converted to Christianity whilst still in Iran. The Tribunal found that they only involved themselves in Christian activities after coming to Australia. The Tribunal also found that they did that for the purpose of strengthening their claims to be refugees. 5 The appellants were not legally represented before the learned primary judge. However, it is apparent from his Honour's reasons that the appellants raised before him a number of complaints about the Tribunal's reasoning and its conduct of the hearing. These complaints were such as to require consideration by the judge. The process of reasoning which the Tribunal followed was subjected to extensive criticism by the appellants in the hearing before the judge. They also complained that they were treated unfairly in a number of respects by the Tribunal in the course of its hearing. 6 The learned primary judge accepted that in some respects the Tribunal's process of reasoning to its conclusions could be criticised, but he held that none of these criticisms was sufficient to show that the Tribunal's decision came within any of the provisos in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, with the result that s 474 the Migration Act prevented the grant of relief under s 39B the Judiciary Act 1903 (Cth). 7 The learned primary judge also considered at length each of the complaints the appellants made about the Tribunal having conducted the proceedings before it in a way which was said to have been unfair to the appellants in a number of respects. His Honour carefully explained in his reserved decision why he rejected each of these complaints of unfairness. The notice of appeal filed by the appellants does not identify any error of fact or law in the judge's decision. 8 Though the appellants did not file any written argument before the hearing commenced today, they did hand up to the Court documents containing some points which they wished to make, but it is apparent that the appellants are making effectively the same criticisms of the Tribunal that they put to the learned primary judge. These complaints were all dealt with by him and rejected. 9 The appellants contend in the documents they have given the Court today that they were told at the hearing by the Tribunal that it would invite the appellants to make any further comments to the Tribunal that they wanted at the end of the hearing. Essentially, the same matter was raised and dealt with by the learned primary judge at par [38] of his reasons. The learned primary judge, in dealing with these complaints, dealt specifically with what was said about the invitation that the Tribunal gave the appellants which they complained the Tribunal did not honour. 10 The appellants also in the documents they handed to the Court made some criticisms of the way the Tribunal dealt with their claims and in particular that of the wife's claim to having converted to Christianity. These claims were made to the learned primary judge and after considering them in detail, his Honour said, at par [41]: