SAAY v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 393

FEDERAL COURT OF AUSTRALIA

SAAY v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCAFC 393 SAAY v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS S 161 of 2002 TAMBERLIN, MANSFIELD and JACOBSON JJ ADELAIDE 6 DECEMBER 2002

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 161 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SAAY

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: TAMBERLIN, MANSFIELD and JACOBSON JJ

DATE OF ORDER: 6 DECEMBER 2002

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1 The appeal be dismissed. 2 The appellant pay the respondent's costs in the proceedings. 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 161 of 2002

ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN: SAAY

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGES: TAMBERLIN, MANSFIELD AND JACOBSON JJ

DATE: 6 DECEMBER 2002

PLACE: ADELAIDE

REASONS FOR JUDGMENT

THE COURT

Introduction 1 This is an appeal from a judge of the Court dismissing an application for review of a decision of the Refugee Review Tribunal ("the RRT") affirming a decision of a delegate of the Minister not to grant the applicant a protection visa. 2 The decision of the delegate was given on 31 August 2001. The appellant applied to the RRT on 3 September 2001 for a review of the decision. The RRT affirmed the delegate's decision on 26 October 2001. The application for judicial review was filed on 23 November 2001 and the primary judge's judgment was given on 17 June 2002. 3 The decision of the RRT was delivered after the amendments to the Migration Act 1958 (Cth) ("the Act") which came into effect on 2 October 2001. Accordingly, the decision of the RRT was a "privative clause" decision under s 474(1) of the Act. Background Facts 4 The appellant is a citizen of Iran. He speaks Farsi and, apparently, has a poor command of English. He arrived in Australia on New Year's Day 2001. On 12 January 2001, he was interviewed by an officer of the Department. The interview took place at the Woomera Detention Centre. The appellant was assisted by a Farsi interpreter. 5 A record of interview was signed on 12 January 2001 by the appellant, the Departmental officer and the interpreter. The form contained standard wording which, in effect, warned the appellant that he was expected to give true and correct answers to the questions and that, if different answers were given at a future interview, it could raise doubts about the reliability of his answers. 6 Question 13 of Part B of the form asked for the appellant's religion. The answer recorded on the form was "Islam". Question 2 of Part C asked why the appellant left Iran. The answer is important and we set it out as follows:- "There is no security and no law. The government officials are against each other. There is no financial security. No medical services are available unless you pay a lot of money. When I had a chest operation and when my wife gave birth they charged us two months earning. This is the summary of the Iran situation. I had personal problems with the religious fanaticism of the government. What my mind does not accept I cannot believe. There are many superstitions in this type of religious problems. Human beings have no worth in Iran." 7 Question 5 of Part C asked whether the appellant had any reasons for not wishing to return to Iran. This answer is also important. It was as follows:- "Iran is against human rights. In other parts of the world they have hospitals for animals. In Iran they do not care about human beings." 8 A tape recording was made of the interview. The appellant has made a number of requests for access to the tape recording but he has not been provided with the tape. We deal with this in more detail under the heading "The Appellant's Submissions". 9 On or about 24 July 2001, the appellant lodged an application for a protection visa. He stated in the application that he was a Christian. 10 In his supporting statement, he said that he had been become a Christian in Iran several years before his departure for Australia. He said that he had a Christian friend in Iran who he had known since high school. He said that a few years before his departure he told his friend that he wanted to become a Christian. He said that the friend discussed the issue with the friend's family because it was dangerous for both of them. He said that the friend's mother asked him a series of religious questions and his statement continued as follows:- "At the end she (the friend's mother) said 'myself and her son are witness that you are Christian but we cannot give you any certificate.'" 11 The appellant's claim that he had converted to Christianity was supported by a letter from Father Monaghan who was the parish priest at the Woomera Detention Centre. Father Monaghan's letter dealt with the appellant's practice of Christianity in Australia. 12 The application for a protection visa was supported by a submission from the appellant's migration agents, Messrs Macpherson and Kelley ("M & K"). M & K were alive to the fact that, at the initial interview, the appellant had not stated that he was a Christian. M & K endeavoured to explain the discrepancy by stating that:- "He did not mention his Christian faith and all of his claims at the initial interview because he was told that he would be provided with representation and would have a further opportunity of stating his claims in detail." The decision of the RRT 13 The appellant gave oral evidence before the RRT on 18 October 2001. The RRT asked him to explain the apparent contradictory statements about his religion. The appellant said there was no contradiction. He said that he did not tell the interviewer at his first interview that he believed in Islam and the reference to Islam as his religion was a mistake. He said that he told the interviewer that he did not believe in Islam and that the written record of interview was incomplete. He suggested that the RRT listen to the tapes but the RRT did not do so. 14 The RRT dismissed the application for review because it did not accept that the appellant had converted to Christianity before he left Iran. The RRT observed that the appellant did not mention his conversion to Christianity at the first interview. Moreover, the RRT said that he did not give a convincing explanation for his failure to do so. The RRT said, at page 18 of its reasons:- "The Tribunal does not accept that a person who was at such a risk would neglect to tell their story accurately, if briefly. They would not generalise it: they would not complain of religious fanaticism and express religious skepticism (sic) but neglect to say how this affected them in particular because they were Christian. They would not speak generally of political rigidity, and the country's economic problems, and failings in social policy, but neglect to mention a political dispute that threatened to land them in Court." (AB 83) 15 The RRT gave reasons for rejecting, as unconvincing, the appellant's account of, and reasons for, his conversion to Christianity. The RRT noted that conversion to Christianity in Iran is a drastic step. The RRT was of the view that the appellant's evidence of his conversion as set out in para [10] above was artificial. Nor could the appellant satisfy the RRT that there was any crisis or revelatory experience which explained the reasons for his conversion. 16 The RRT rejected as "far fetched" the appellant's claim of a political and religious dispute at his workplace as the explanation for his decision to leave Iran. 17 The RRT accepted that the appellant would be "uncomfortable" as a sceptic living in an Islamic Republic. It also accepted as "possible" his evidence that he had missed out on a place at University through lack of Islamic connections but it did not accept that these things constituted persecution. Nor did the RRT accept that the appellant would be persecuted in Iran just because he is not devout or that he had been discriminated against at work because he was not a practising Muslim. 18 Moreover, the RRT did not accept that the appellant would be punished in Iran for studying Christianity in Australia or for proclaiming in Australia an intention to convert. The RRT invoked s 91R(3) of the Act. That subsection provides that, in determining whether a person has a well-founded fear of persecution for a Convention reason, the RRT is to disregard any conduct engaged in by the person in Australia unless the person satisfies the Minister that he or she engaged in the conduct otherwise than for the purpose of strengthening the claim to refugee status. The decision of the primary judge 19 The appellant was represented by counsel at the hearing before the primary judge. Two grounds of review were pursued. The first was that the RRT failed to give sufficient weight to the evidence of the appellant's religious beliefs. The second ground was that the RRT was said to have erred by failing to make available to the appellant the tapes of the initial interview dated 12 January 2001. This was the principal ground pursued before his Honour. 20 His Honour noted at [14] that counsel for the Minister accepted that the RRT had relied upon the inconsistency between the appellant's evidence before the RRT and the statement which he gave at his first interview. 21 Thus, there was no real issue in relation to s 424A(1). That subsection obliges the RRT to give to an applicant particulars of information which the RRT considers would be a part of the reasons for affirming the decision under review. The question of whether the RRT had erred in law by failing to supply the tapes turned upon whether the exemption in s 424A(3)(b) applied. That subsection provides that s 424A(1) does not apply to information "that the applicant gave for the purpose of the application." 22 The primary judge referred to the decision of a Full Court in Minister for Immigration and Multicultural Affairs v Al Shamry (2001) 110 FCR 27 ("Al Shamry"). There, Ryan, Merkel and Conti JJ held that the word "applicant" in s 424A means "applicant for review by the Tribunal of aMinisterial decision"and that the word "application" means the proceeding before the RRT; see per Ryan and Conti JJ at [17] and per Merkel J at [35]. 23 However, his Honour distinguished the facts of this case from the facts in Al Shamry. He found that the contents of M & K's submission and, in particular, the passage which we have set out at [12] above, established that the appellant and M & K were aware of the conflict between the appellant's statement at his first interview and the evidence which he gave to the Tribunal; at [20] of the primary judge's reasons. 24 After setting out the submission made by M & K to which we have referred, his Honour said at [21]:- "That statement established that the information in the first interview amounted to "information" that the applicant gave to the Tribunal "for the purposes of the application" that was then being considered by the Tribunal. I am therefore satisfied that there was no obligation on the part of the Tribunal to give to the applicant the particulars of information that the Tribunal considered would have been a reason, or part of a reason, for affirming the decision that was under review." 25 The primary judge also found that the application for review failed on another basis. His Honour said that the appellant's difficulty was that the Tribunal did not believe him. The primary judge referred to and quoted a well-known passage from the judgment of McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 at [67]. The appellant's submissions 26 The appellant appeared in person. The notice of appeal raised two grounds. The first ground was that the primary judge was wrong in his interpretation of the law with respect to the granting of refugee status. The second was that the primary judge should have found that the RRT committed jurisdictional error which was not validated by the privative clause. It is plain that the notice of appeal was prepared by solicitors. 27 Three matters were raised by the appellant. The first, and only substantial argument, was that he had not been provided with the tape of the first interview. The second was that there was evidence of his Christianity and the third was that information about his case was available to the Iranian authorities on the internet. The second and third matters cannot constitute grounds of review. 28 The appellant and counsel for the respondent told us from the Bar table the history of the appellant's attempts to obtain the tape. We have no reason to doubt what we were told. 29 Counsel for the respondent informed us that he had provided the tapes to the appellant's counsel at the hearing before the primary judge. We assume this was done for the purpose of enabling the appellant to deal with an affidavit sworn by a solicitor in the employ of the respondent's solicitors. The solicitor had listened to the tapes and she referred to them in her evidence. However, the appellant's counsel objected to the tender of the affidavit evidence and his Honour upheld the objection. Counsel for the appellant conceded that we could not refer to the affidavit as evidence on the appeal. 30 A management conference was held before a Registrar on 30 July 2002. The Registrar's handwritten note of the conference includes the following:- "Request by applicant that the Court listen to the tapes of the initial interview. I advised I would note this. He may also raise this issue in his submissions. Ms Reid (then solicitor for the respondent) will seek instructions from DIMIA re release of tapes and formally advise. Applicant has advised that in his view if tapes not available there is no point in hearing proceeding." 31 Prior to the hearing of the appeal, the respondent's solicitors sent a tape recording of an interview to the appellant. Apparently, the solicitors intended to deliver the tape recording of the first interview but, unfortunately, the wrong tape was despatched. Counsel for the respondent conceded that, in fact, the tapes which had been sent contained a recording of the third interview. 32 Counsel for the respondent was unable to explain why the tape which had been requested was not sent. He said that neither he nor his instructing solicitors knew the whereabouts of the tape of the first interview. We are satisfied that counsel was doing his best to assist the Court but the aborted attempts to provide the tape recording to the appellant are embarrassing for the Department and the solicitors. It appears that counsel, who appeared for the appellant before the primary judge, returned the tape to the appellant's then solicitor. We do not know whether that solicitor has retained the tape.