FEDERAL COURT OF AUSTRALIA NABD v Minister for Immigration & Multicultural Affairs [2002] FCA 384 NABD v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 44 OF 2002 EMMETT J SYDNEY 26 MARCH 2002 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N44 OF 2002 BETWEEN: NABD APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: EMMETT DATE OF ORDER: 26 MARCH 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the applicant be dismissed; and 2. the applicant pay the repondents' costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N44 OF 2002 BETWEEN: NABD APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: EMMETT DATE: 26 MARCH 2002 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a national of Iran. He arrived in Australia on 9 November 2000. On 24 November 2000 he lodged an application under the Migration Act 1958 (Cth) ("the Act") for a protection (class XA) visa. On 31 January 2001 a delegate of the first respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 2 February 2001 the applicant applied to the second respondent, the Refugee Review Tribunal ("the Tribunal"), for review of that decision. On 10 April 2001 the Tribunal made a decision affirming the delegate's decision. On 20 June, 2001, that decision was set aside by the Federal Court and the matter was remitted to the Tribunal. 2 On 19 December 2001 the matter again came before the Tribunal, differently constituted. That Tribunal again affirmed the decision not to grant a protection visa. The applicant now applies to this Court under section 39B of the Judiciary Act 1901 (Cth) for writs of Certiorari, Mandamus and Prohibition. 3 When the matter was called on for hearing today, the solicitor for the respondents moved for dismissal of the Tribunal as a party. It is common ground that nothing will turn on whether or not the Tribunal is a party. That is to say, the Minister accepts that the applicant would be entitled to the relief claimed irrespective of whether or not the Tribunal is a party. The applicant, nevertheless, joined the Tribunal for more abundant caution. I declined to entertain the application brought informally, since it is a matter that requires some attention and it is not critical to the outcome of this case. I shall therefore decide the case with both the Minister and the Tribunal as respondents. 4 The applicant claimed that, when he was in Iran, he became acquainted with a man who became his confidante. He described the man as a protestant Armenian and said that Christians in Iran are generally referred to as Armenians. The applicant claimed that he gradually asked his confidante questions about Christianity and that he became increasingly identified with the Christian faith. He also claimed that during a visit to his confidante's house, two members of the intelligence service arrived after he had been there for about twenty minutes. He claimed that upon the arrival of the two intelligence officers his confidante told him to remain calm and that they would endeavour to escape later. He claimed his confidante subsequently pushed one of the officers to one side and told him to run away. 5 The applicant claimed that he fled to a relative's house and later crossed the border into Turkey with the assistance of a people-smuggler. He claimed that he carried with him a false passport but that that passport was stolen from him when he arrived in Indonesia at a later time. He claimed that he spent several months in Indonesia before making his way to Australia by boat. He claimed that while in Indonesia he conducted some research into the wrongs of Islam and the nature of Christianity. He said that after spending about five months in Indonesia he was baptised. He said that he attended church services and also distributed pamphlets describing Jesus and John the Baptist and discussing other matters such as the miracles. 6 The applicant claimed that he felt obliged to pass on the good news about Christianity to others and that he gives pamphlets to some other detainees in the detention centre where currently resides. He claimed that he was actively involved in public outreach in Indonesia and that his Christian teachers had urged him to spread the word. He also said that in Australia, he is attached to the protestant faith and that that is a similar faith to that which he embraced in Indonesia. He said that he has undertaken a bible study course and he claims that, in embracing Christianity, he has learned qualities such as tolerance and patience. He said that he has learned some bible stories and about matters such as the sacrifices made by Jesus and the importance to believers of the second coming of Christ. 7 His claim to refugee status is based on the assertion that he would be regarded as an apostate in Iran and that he faces official persecution, including the possibility of assassination in that country. In the course of a hearing before the Tribunal the applicant's adviser submitted that there had been a mass conversion to Christianity in the detention centre where the applicant currently resides due to the sharing of ideas and experiences. It was submitted that the applicant had been active in proselytising and that he would continue to do so in Iran, where he would not be prepared to hide his faith. She claimed that apostasy leads to more serious problems than are faced by those who are Christians at birth. She also submitted that, even if the applicant were to practise his Christian faith privately, his father, being a Muslim fundamentalist, would cause him problems by reporting him to the authorities. 8 The Tribunal accepted that the applicant befriended a Christian in Iran and that he occasionally discussed the Christian faith with him. However, the Tribunal referred to the fact that the applicant never claimed to have attended church in Iran or to have taken any real steps to embrace Christianity, as distinct from merely inquiring about its rudiments. However, the Tribunal found that the applicant had fabricated his story of a private religious meeting that was allegedly interrupted by the authorities. The Tribunal did not accept that the applicant had any convention-related need to avoid the Iranian authorities. It found that the applicant was not wanted by the authorities when he left Iran. It was not satisfied that he had any need of a false passport and did not accept that he departed Iran illegally in ways that he claimed. The Tribunal concluded that the applicant left Iran legally on his own passport. 9 The Tribunal did not find the applicant to be a witness of truth, at least in relation to events in Iran and some other matters. The Tribunal had serious reservations about the applicant's motivation for embracing Christianity while in Indonesia and subsequently. However, the Tribunal accepted that the applicant may have genuinely embraced Christianity over time. It accepted that he had been baptised in Indonesia, that he had undertaken a bible study course by correspondence and that he had attended religious gatherings in Indonesia and in the detention centre in Australia. The Tribunal observed that such gatherings are generally organised by a minister of the Uniting Church. The Tribunal also accepted that the applicant has engaged in other religious activities, including the distribution of pamphlets, speaking to others privately about his faith and encouraging interested persons to attend church services. 10 The Tribunal was not wholly satisfied that the applicant has genuinely embraced Christianity, at least from the outset, rather than engage in a conversion for convenience. Accepting, however, the contrary, namely that the applicant has embraced Christianity, the Tribunal considered that the evidence before it indicated that, if he were to practise as a Christian in Iran, the applicant would be able to do so in ways in which he has practised that faith in Australia, without facing a real chance of persecution. The Tribunal observed that, although the applicant claimed that he felt it his duty to tell others about his faith, the evidence was that he was able to do so without facing any serious repercussions, provided he does not proselytise. The Tribunal referred to material before it indicating that converts who go about their devotions quietly are not bothered in Iran. It is only those who actually seek public attention through conspicuous proselytising who encounter a real chance of persecution in Iran. 11 In weighing all the available evidence the Tribunal found that the applicant would not choose to broadcast his practice of Christianity generally or to proselytise in Iran conspicuously. The Tribunal found that, if he were to choose to practise Christianity in Iran and to spread the word quietly, there would not be a real chance that he would face persecution as a consequence. The Tribunal referred to material from the Department of Foreign Affairs and Trade indicating that Iranian converts to Christianity who go about their devotions quietly and maintain a low profile are generally not disturbed. The material before the Tribunal indicated that the authorities in Iran are not really concerned about ordinary people who convert to Christianity, provided they do not seek to convert others or engage in high-profile religious activities. 12 The Tribunal accepted that the applicant had discussed Christianity with other detainees but did not accept that his activities, since leaving Iran, constituted active attempts to convert others through proselytisation, as distinct from "a quiet sharing of his faith". The Tribunal found that the applicant is not a member of a denomination that exhorts its adherents to proselytise. 13 The Tribunal referred to a letter from a Minister of the Uniting Church at the detention centre, which indicates that the church with which the applicant had some association in Indonesia has similar tenets to the Uniting Church denomination to which he has become attached in Australia. The letter says: "[The applicant] likes to be able to tell Muslim people he knows about Christianity particularly if they are showing an interest. He has told me he is doing this at [the detention centre]. It seems he cannot resist sharing his faith with others I do not see this as a bad thing but rather that it is great because [the applicant] is merely living out the call of Christ to share the good news with others. This is an essential part of being a Christian" 14 The Tribunal found that a distinction could be drawn between the quiet sharing of one's faith as an evangelist, on the one hand, and the aggressive outreach through proselytising by adherents of some more fundamental faiths, on the other hand. It referred to country information that indicated that the actual capacity of the applicant to practise his faith in Iran, without a well founded fear of persecution, was consistent both with his Christian teachings in Australia and Indonesia. 15 The Tribunal found that a requirement to proselytise was not a core component of the applicant's faith nor, indeed, essential to it. The Tribunal found that the applicant would be able to practise his faith in Iran as he has done outside that country without facing a real chance of persecution. The Tribunal was not satisfied that there were any essential aspects of the applicant's faith that he would be constrained from practising in Iran due to any well founded fear of persecution. The Tribunal found that any decision to avoid proselytising in Iran or of actively seeking attention on matters of religion is not consistent with the applicant's beliefs and practices. 16 The Tribunal found that the applicant is not constrained in the practice of his avowed faith nor would he be in Iran due to a perception that to behave more openly or aggressively would leave him at risk of persecution. The Tribunal was therefore not satisfied that grounds upon which his claim to refugee status were founded were made out. 17 The amended application to this Court specifies, as the ground for the issue of the writ's claimed, that the Tribunal committed jurisdictional errors of law. Four particulars were specified, but only three were pressed as follows: · the Tribunal failed to take into account a relevant consideration, being the Christian denomination that the applicant had embraced; · the Tribunal acted in violation of an imperative duty, or an inviolable limitation, imposed upon it by section 424(1) of the Migration Act; and · the Tribunal found, in the absence of any foundation in fact or evidence, that the Iranian authorities recognised a distinction between a person sharing his Christian faith as an evangelist and proselytisation. 18 The Tribunal filed a submitting appearance. The Minister contended that the application is doomed to failure by the operation of the section 474(1) of the Migration Act. The Minister also contended that, even if Section 474(1) does not preclude the applicant from maintaining this action, there is no substance in the three claims that I have just mentioned. 19 The decision of the Tribunal is a privative clause decision within the meaning of s 474(2). Under s 474(1) a privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account. 20 Such a provision must be interpreted as meaning that no decision which is in fact given by the Tribunal will be invalidated on the ground that the Tribunal has not conformed to the requirements governing its proceedings or to the exercise of its authority or has not confined its acts within the limits laid down by the provision giving it authority, subject to three prerequisites. The first prerequisite is that the decision must be a bona fide attempt by the Tribunal to exercise its power, the second is that the decision must relate to the subject matter of the legislation and the third is that the decision must be reasonably capable of reference to the power given to the Tribunal. 21 In his speech on the Second Reading of the Bill for the Amendment of the Migration Act to insert s 474 in its current form, the Minister expressly accepted those qualifications, which are derived from the judgment of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 at 615. The Minister expressly accepted that a precondition to the operation of s 474(1) would be that those prerequisites were satisfied in any particular case. 22 The operation of such a privative clause is a rule of construction. It remains possible, therefore, in an appropriate case, to impeach a decision made in breach of imperative duties are inviolable limitations or restraints imposed by the legislation containing the privative clause. The applicant contends, in one aspect of the particulars of the ground relied on in his application, that the Tribunal failed to comply with two provisions of the Migration Act that, as a matter of construction so it is contended, override the clear intent of s 474. 23 Section 414(1) provides that if a valid application is made for review of a "Refugee Review Tribunal reviewable decision", as defined in the Act, the Tribunal must review the decision. The applicant contends that the Tribunal's failure to take into account the Christian denomination that the applicant had embraced amounted to a failure to review the decision of the Minister's delegate. 24 Section 424(1) provides that, in conducting a review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information the Tribunal must have regard to that information in making its decision on the review. The applicant referred to three passages in the material that was available to the Tribunal that the applicant contends was not taken into account by the Tribunal, in contravention of s 424. 25 It is clear that the first two grounds overlap considerably. However, for reasons that I will now formulate, I do not consider there is any substance in those grounds. 26 The Tribunal made clear findings in its reasons of the extent to which the applicant has embraced Christianity and, indeed, referred expressly to the denomination of the church with which he had become associated both in Indonesia and in the detention centre in Australia. Gatherings in the detention centre are generally organised by a Minister of the Uniting Church and the letter to which I have already referred was written by a Minister of the Uniting Church of Australia. Further, there was evidence before the Tribunal that the church with which the applicant had been associated before he came to Australia was: "a protestant church and in fact a mission partner similar to assist the church relationship with the Uniting Church in Australia". 27 It is true that the Tribunal did not inquire into the doctrines of the Uniting Church and specifically into the doctrines of the Uniting Church concerning evangelism. However, the Tribunal made express findings of the Christian activities of the applicant to the extent that I have already set out above. The Tribunal characterised the activities of the applicant as the quiet sharing of his faith. It is clear that the Tribunal took into account the Christian denomination that had been embraced by the applicant. 28 In the course of its reasons the Tribunal made reference to a United States State Department publication entitled "Annual Report on International Religious Freedom for 1999 Iran". The Tribunal quoted two extracts from that document, including the following passage: "The government is highly suspicious of any proselytising of Muslims by non-Muslims and can be harsh in meting out its response in particular against Baha'is and evangelical Christians. The government regards the Baha'i community whose faith originally derives from a strand of Islam as a "misguided" or "wayward" sect. The government has fueled [sic] anti Baha'i and anti Jewish sentiment in the country for political purposes." The applicant draws attention to two other passages in that document. The first is as follows: "The authorities have become particularly vigilant in recent years in curbing what is perceived as increasing proselytising activities by evangelical Christians whose services are conducted in Persian. Government officials have reacted to this perceived activity by closing evangelical churches and arresting converts. Members of evangelical congregations have been required to carry membership cards, photocopies of which must be provided to the authorities. Worshippers are subject to identity checks by authorities posted outside congregation centres. Meetings for evangelical services have been restricted by the authorities to Sundays and church officials have been ordered to inform the Ministry of Information and Islamic Guidance before admitting new members to their congregations." The second passage is as follows: "Oppression of evangelical Christians continued during the period covered by this report. Christian groups reported instances of government harassment of churchgoers in Teheran, in particular against worshippers at the Assembly of God congregation in the capital. Instances of harassment cited included conspicuous monitoring outside Christian premises by Revolutionary Guards to discourage Muslims or converts from entering church premises and demands for presentation of identity papers of worshippers inside." 29 The matters referred to in those passages are, of course, very serious and constitute a substantial interference with freedom of religious observance. Nevertheless, in circumstances where the Tribunal quoted a passage from the same document recording that the Iranian government can be harsh in meting out its response to evangelical Christians, I do not consider that an inference is open that the Tribunal failed to take into account the other more specific allegations contained in the same document. I do not consider that the claim that the Tribunal failed to take into account the passages, which I have quoted above, is made out. 30 Secondly, attention is drawn to a passage in a document published in January 2001 by the United Nations High Commissioner for Refugees, being a background paper on refugees and asylum seekers from Iran. The passage is as follows: "Christians A Christian group reported that between 15 and 23 Iranian Christians disappeared between November 1997 and November 1998. Those who disappeared reportedly were Muslim converts to Christianity whose baptisms had been discovered by the authorities. The group reporting the disappearances believed that most of them were killed. In 1999 one organisation reported eight deaths of evangelical Christians at the hands of the authorities in the past 10 years." 31 The passage was quoted in the reasons for the decision of the Tribunal that was set aside by the Court. There is no reason to doubt that the Tribunal whose decision is presently under review had the same material available to it. I am prepared to accept that the background paper was available to the Tribunal. 32 On the other hand, the omission to mention that passage does not, in my view, give rise to an inference that the Tribunal failed to take it into account. The Tribunal quoted extracts from a document published by the Department of Foreign Affairs and Trade, albeit in 1996, which contained the following passages: "The evidence is that those converts who go about their devotions quietly are genuinely not disturbed (it is either those who actively seek attention or who are engaged in conspicuous proselytisation who have run into difficulties usually with the local Mosque rather than the State authorities…… Death sentences for apostasy have traditionally been issued to Baha'is and occasionally Christian converts who have been active in proselytising. However the death sentence has rarely been carried out to apostasy alone. The majority of religious judges appear reluctant to deliver an execution order for this "offence" alone. People who do publicly convert away from Islam would however be harassed, possibly imprisoned and threatened with death if they had been found to be active in proselytising among Muslims…Those who worship privately and maintain a low profile will be very unlikely to suffer any adverse attention from the authorities for their conversion unless they are involved in other activities which would attract security interest. 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 great problems with the authorities on account of their links with the West and the greater important placed on proselytising. Any action interpreted as manifesting and 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, it's application is intended to harass. Converts are generally tolerated as long as they maintain a very low profile. 33 The Tribunal clearly had regard to that material in reaching the conclusions that it reached. It was not incumbent upon the Tribunal to refer to every other piece of material before it that might have led to a different conclusion. Whatever might be the effect of s 424, I do not consider that there has been any failure on the part of the Tribunal to comply with s 424 in relation to the passages relied on by the applicant. 34 That brings me to the final particular of the ground, namely that the Tribunal drew a distinction between the sharing of Christian faith as an evangelist, on the one hand, and proselytisation, on the other hand, unsupported by any fact or evidence. The language of the Tribunal does exhibit some tensions, having regard to the extract to which I have just referred, in which it is recorded that protestant and evangelical missionary churches have tended to face greater problems because of the greater importance placed on proselytising. 35 It is not entirely clear what the Tribunal meant when it said: "A distinction can be drawn between the quiet sharing of one's faith as an evangelist and the aggressive outreach through proselytising by adherence of some more fundamental faiths." Protestant churches are evangelistic, in the sense that the Christian faith, as the Tribunal refers to it, involves "a sharing of the good news with others", as Reverend Watts said in his letter to the Tribunal. However, the Tribunal clearly found, as a fact, that evangelism of that nature, the quiet sharing of one's faith, was of a different character altogether from active proselytisation. That is consistent with the passages that I have cited. Clearly, there was material before the Tribunal from which a conclusion could be drawn that the carrying out of activities, such as the applicant has engaged in in Australia, will not cause concern for the authorities in Iran. 36 Thus, converts are generally tolerated as long as they maintain a very low profile. Converts who go about their devotions quietly are generally not disturbed. The Tribunal made a finding that, if the applicant does no more than he has done hitherto, namely, distribute pamphlets, speak to others privately about his faith and encourage interested parties to attend church services that will not constitute the active proselytisation that might attract the attention of the authorities in Iran. 37 I consider that there was material before the Tribunal that enabled it to draw a distinction between the quiet sharing of one's faith as an evangelist, being a member of a protestant church, and the aggressive outreach through proselytising by adherence to some more fundamental faiths. I do not consider there is any substance in this third particular. 38 It follows that, whatever the effect might be of s 414 and s 424 of the Migration Act, the applicant has not established that the Tribunal made its decision in breach of any imperative duty or inviolable limitation or restraint. No suggestion has been advanced that the decision was not an attempt to exercise power in good faith and it clearly relates to the subject matter of the legislation. The power given to the Tribunal was to make a decision as to whether or not the applicant is a person to whom Australia has protection obligations under the Refugees' Convention. That is precisely the power that the Tribunal purported to exercise. 39 I am not satisfied that the Tribunal's decision can be impeached on any of the grounds relied on by the applicant. It follows in my view that the application should be dismissed. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 3 April 2002 Counsel for the Applicant: Mr L. Karp Solicitor for the Applicant: McDonells Solicitors Counsel for the Respondent: Mr A. Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 March 2002 Date of Judgment: 26 March 2002