MZXBR v Minister for Immigration
[2006] FMCA 442
•4 April 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZXBR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 442 |
| MIGRATION – Protection visa – Refugee Review Tribunal – whether jurisdictional error – failure to consider issue squarely raised – Applicant’s claimed conversion to Christianity – failure to consider baptism certificate – first Tribunal accepted claim of persecution based on Christian conversion – second Tribunal hearing rejected claim of persecution based on Christian conversion – apostasy. |
| VFAC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 367 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 |
| Applicant: | MZXBR |
| First Respondent: | MINISTER FOR IMMIGRATION & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 774 of 2005 |
| Judgment of: | McInnis FM |
| Hearing date: | 17 February 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 4 April 2006 |
REPRESENTATION
| Pro Bono Counsel for the Applicant: | Mr P.F.J. Condliffe |
| Counsel for the Respondents: | Ms H. Riley |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 4 May 2005.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
Liberty to apply shall be granted to parties in relation to the issue of costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 774 of 2005
| MZXBR |
Applicant
And
| MINISTER FOR IMMIGRATION & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
In this application the Applicant seeks judicial review of a decision of the Refugee Review Tribunal dated 4 May 2005 which had affirmed a decision of a delegate of the First Respondent to refuse to grant to the Applicant a protection visa.
The Applicant is a citizen of Iran born in 1961. He arrived in Australia on a business visa on 16 February 2001. He lodged an application for a protection visa on 16 March 2001. That application was refused by a delegate of the First Respondent on 1 November 2001. The Applicant applied for review of the delegate's decision to the Tribunal. On 31 May 2002 the Tribunal affirmed the delegate's decision (the first Tribunal decision). The first Tribunal decision, however, was set aside by an order of Weinberg J in the Federal Court of Australia by order made 31 March 2004 (see VFAC v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 367) (VFAC).
The first Tribunal had accepted one of the key claims by the Applicant of a fear of persecution based upon his conversion to Christianity. However, the first Tribunal was found to be in error by Weinberg J in that when dealing with the conversion to Christianity, it failed to address what his Honour described as "the effect this act of apostasy might have upon the Applicant if he were required to return to Iran." It is relevant to at least note by way of background the following extract from his Honour's decision where he states:
“… It avoided that issue only by finding that he could conceal his apostasy by practising his Christian faith in a discrete manner. S395 establishes that this is the very thing that the applicant is not required to do in order to avoid persecutory harm. The Tribunal's approach to this issue is essentially the same as that which was held to constitute jurisdictional error in that case.
Weinberg J also made the following comment in his judgment:
“27 Finally, Mr Hanks relied upon the decision of a Full Court of this Court in SGKB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 44 ("SGKB"). There, an Iranian national claimed to fear persecution under the Convention, by reason of his religion. On review, the Court held that the Tribunal had failed to evaluate the objective basis of the appellant’s fear because it had failed to appreciate the distinction between the likelihood of his suffering persecution, and the objective justification of his fear. In particular, the Tribunal had failed to take into account the potential seriousness of the consequences to the appellant of exposure of the fact of his conversion, or to consider his fear in that context. In so doing, the Full Court held that the Tribunal had erred in law by applying the wrong test – that is, it had failed to complete the required analysis.”
In any event, the application for a protection visa and review of the delegate's decision upon remittal from the Federal Court was then the subject of a further hearing by a differently constituted Tribunal (the second Tribunal) dated 4 May 2005 (the second Tribunal decision) leading to the decision sought to be reviewed in this court.
The Applicant's Claims
The Applicant's claims have been summarised in the Applicant's contentions of fact and law in the following terms:
·Whilst living in Iran he undertook various political activities in opposition to the government and by reason of those activities suffered persecution at the hands of the Iranian authorities.
·The Applicant also claimed that whilst in Iran he had befriended a Christian who introduced him to the teachings of Christianity. His friend had lent him a bible which he claimed to have read and which enabled him to feel "at peace". He claimed that he told another Christian acquaintance that he wished to become a Christian but said he had warned of the risks associated with apostasy. Before the second hearing he expanded upon this to say he had undergone some form of "revelation".
·Following his arrival in Australia, the Applicant underwent a formal conversion to Christianity. He produced a baptism certificate, answered various questions about Christianity and a priest gave evidence on his behalf, including that he attended a church. That evidence was given at the first Tribunal hearing.
·The Applicant claimed that by reason of his having become an apostate of Islam, he feared persecution and possibly death if required to return to Iran.
There are a number of observations which should be made in relation to the claim. It is clear that the claim altered somewhat from the claim before the first Tribunal to the claim before the second Tribunal. There was a suggestion before the second Tribunal that the Applicant had gone into hiding, primarily due to his political beliefs, and it was whilst in hiding that he encountered the Christian views of the person in whose home he had then hidden.
It should further be noted for the purposes of the application before this court that the question of the Applicant's political views and the reliance upon those views as a basis upon which a protection visa should be granted is not pursued. An adverse finding was made by the second Tribunal in relation to the Applicant's claimed political views and/or activities and no issue is taken as to that finding.
It is useful to note that as indicated, the Applicant, in support of the claimed conversion to Christianity, relied upon evidence which included a baptism certificate and, at the first Tribunal hearing at least, provided further evidence from a priest who gave evidence concerning the Applicant's baptism and conversion to Christianity. It seems to be common ground that that priest is the priest who signed the baptism certificate. The baptism certificate (Court Book page 158) sets out the details of the Applicant and appears to be a certificate which prima facie was issued for and on behalf of a Syrian orthodox church in Melbourne. It is dated 18 June 2001. It provides in part the following:
“This is to certify that (the Applicant) has received the sacrament of Holy Baptism and Confirmation according to the Holy Rites of the Syrian Orthodox Church.”
The photocopy of the baptism certificate which appears in the Court Book also has a stamp upon it confirming that it was "received at hearing" and the date is 20 May 2002. The stamp is initialled by an officer of the Refugee Review Tribunal Melbourne registry. There is no issue in this case taken that that baptism certificate was produced to the first Tribunal hearing and that that document, along with other documents produced at the first Tribunal hearing, were made available to the second Tribunal. The material was referred to by the second Tribunal in its decision made after remittal of the matter from the Federal Court. Indeed, in its decision dated 4 May 2005, the second Tribunal in dealing with the first review specifically refers to the resumed hearing of the first Tribunal and notes that:
“The Applicant presented a baptism certificate showing that he had been baptised on 18 June 2001 by the Syrian Orthodox Church, Melbourne.”
It should also be noted by way of background to this application that at no stage has an adverse finding been made in relation to the baptism certificate, nor indeed in relation to the evidence of the priest relating to the baptism. The first Tribunal indeed, as indicated earlier, had accepted the Applicant's conversion to Christianity.
In its reasons for decision, the first Tribunal, having found that it was satisfied that the Applicant's involvement with Christianity and the Christian church in Australia is of a type which would give rise to a real chance of persecution, clearly did not need to then address or make specific findings concerning the authenticity of the baptism certificate. It did, however, refer to the Applicant's explanation in relation to his knowledge of Christianity, and it is useful to note the following extract from the first Tribunal decision (Court Book page 195) where it states:
“However in relation to the applicant's explanation of his knowledge of Christianity, the Tribunal considers that in the second hearing the applicant demonstrated only a very basic knowledge of some aspects of the Christian faith. In this regard the Tribunal notes the advice provided by the applicant's priest in Melbourne, Father Aphram, that the applicant's knowledge of Christianity was ‘basic’. It also notes Father Aphram's advice that the applicant had not undertaken any formal studies in Christianity in Australia prior to his baptism by Father Aphram in June 2000. Additionally the Tribunal notes that Father Aphram described the applicant's church attendance as ‘semi‑regular’. However in this regard the Tribunal has kept in mind the facts that the applicant does not have a motor vehicle and therefore has been required to attend church by public transport and that language difficulties have limited his ability to participate in church activities in Melbourne. The Tribunal accepts that these matters would have affected adversely the applicant's participation in Christian activities in Australia. It has also borne in mind that as a relatively recent Christian convert the applicant can not be expected to have a detailed knowledge of Christianity or Christian principles.”
The first Tribunal then proceeded to accept that since his arrival in Australia the Applicant had converted formally to Christianity and accepted that he practiced his faith in Australia. It also noted what it regarded as the Applicant's extremely limited involvement with Christianity and the Christian church in Iran prior to his departure for Australia.
I have deliberately set out some details of the first Tribunal hearing to indicate the type of evidence then before the first Tribunal which would then be known to the second Tribunal member. It is not suggested by either party and nor can it be the case that the findings of the first Tribunal would in any way be binding upon the second Tribunal. Nevertheless, the fact that there was evidence before the first Tribunal included as part of the material and evidence before the second Tribunal is relevant when considering the application for judicial review before this court. This will become evident upon reference to the grounds sought to be relied upon in this application.
The Amended Application
In the amended application filed 4 November 2005, the Applicant relies upon two grounds upon which orders are sought in relation to the decision of the Tribunal. The grounds are as follows:
“Ground 1. The Tribunal exceeded, or alternatively failed to exercise, its jurisdiction by the decision by misconstruing the applicant's claim and thereby identified a wrong issue, asked itself a wrong question, ignored relevant material and relied exercise of its powers by an erroneous understanding of what constitutes a ‘well-founded fear of persecution’.
Particulars
1. The Tribunal's Findings and Reasons is critically silent upon the applicant's baptism in Australia and the effect his perceived apostasy may have upon his return to Iran.
2. The rationale for his ‘limited participation’ in religious activities in Australia as accepted by the previous Tribunal was either not considered or disregarded.
3. The Tribunal has not invoked s.91R(3).
4. The Tribunal went on to assess the question of whether the applicant had an objectively well-founded fear of persecution in Iran by reason of his religion on the basis of its findings that his ‘limited participation in Christian activities’ will not bring him to the adverse attention of the Iranian authorities or that he would practice Christianity upon his return although the basis for this conclusion is nowhere stated.
5. There is no reference to relevant independent country information.
6. The Tribunal seems to be conflating the facts of conversion and the genuineness or rationality of belief systems.
7. The Tribunal has therefore failed to take into account certain critical and relevant considerations (the baptism and certificate presented, the rationale for his limited participation in Australia, and the country information referred to) and fell into jurisdictional error.
Ground 2. The Tribunal in addition and/or alternatively failed to deal with an element or integer of the applicants claims that he had a well-founded fear at the time of the decision when it did not take into account the fact that he was baptized as a Christian.
Particulars
1. Following his arrival in Australia, the applicant underwent a formal conversion to Christianity. He produced a baptism certificate, answered various questions about Christianity and a priest gave evidence on his behalf including that he attended a Church at the first RRT hearing.
2. The evidence and material was central to his claims.
3. The Tribunal did not take this evidence and material into account in its decision.”
The Tribunal Decision
Whilst the second Tribunal conducted a hearing and received statements from the Applicant, it did not at any time receive evidence from the priest but rather noted that evidence had been received at the first Tribunal hearing. It did not make any express finding as to the authenticity of the baptism certificate referred to earlier in this judgment. However, it did ask the Applicant questions concerning his conversion to Christianity. It is not necessary for the court to further consider other issues relating to the Applicant's political beliefs which were also addressed by the Tribunal.
Relevantly for the present purposes, it is useful to set out the following extract which appears in the Tribunal's decision under the heading "The hearing" where the Tribunal states the following:
“The Tribunal asked the applicant why he adopted the fundamental belief that Jesus Christ was the son of God. The applicant said Islam did already acknowledge Jesus as a prophet. He then made various criticisms of the prophet Mohammad and said Jesus was a better person. He also said the Koran was anti-humanitarian. For example, it contained barbaric punishments. Jihad was too strict (e.g. performing ablutions at 4 a.m.). The Tribunal observed that Islam, like Christianity, can be observed in a range of degrees of strictness, including relatively secular and less devout styles of observance. The applicant said Mohammad is a false prophet and his religion, which post-dates Christianity, is false. The behaviour of Muslims and Christians is completely different. Muslims, in the eyes of the world, are nothing but a bunch of terrorists. Jihad was a holy war. Anyone that isn’t Muslim was regarded by Muslims as an infidel. If they could, they would kill you.
The applicant said that when he was at the Christian's place (...), he had a dream. He felt and/or saw Jesus Christ. He was trembling and in tears, for a few hours. He had touched Jesus Christ. Jesus helped him, and that was why he was here in Australia now, without having been caught at the airport. He came to Australia and managed to get work. It felt as though Jesus picked him up and put him in Australia. Now he sees only Jesus Christ. These spiritual revelations can happen in a moment. The applicant, in response to a request for confirmation from the Tribunal, confirmed that this revelation occurred when he was hiding at the home of the friend of his brother, from August 2000. The applicant said he wanted to be free to be a Christian.”
Those passages set out above reveal details of the Applicant's claim which were not the same as details provided to the first Tribunal, specifically the issue, as indicated earlier in this judgment of being "in hiding" and/or the details concerning what may be described as the revelation did not appear to be referred to at the earlier hearing.
It appears that the second Tribunal was reconstituted by a new Tribunal member appointed for a hearing listed on 9 March 2005. Correspondence was forwarded by the then representatives of the Applicant to the Tribunal referring to a proposed hearing date of
9 March 2005. The letter dated 7 March 2005 was forwarded to the Tribunal addressing the issues referred to, including the claim of political persecution. It relevantly also included further submissions under the heading "Genuineness of Applicant's Conversion to Christianity" where in part it is stated as follows:-
“20. The priest of the St Aphram Syrian Orthodox Church in Reservoir gave evidence at the first Tribunal hearing about the Applicant's baptism and conversion to Christianity. Father Aphram explained that he had been introduced to the Applicant through his son with whom the Applicant worked.”
The second Tribunal issued an invitation dated 29 March 2005 to the Applicant seeking further information. In particular reference was made to a medical report relating to the Applicant’s claims of having been lashed and the medical examiner finding no physical evidence to support that claim together with other reference to country information. Reference was also made to police reports by the Applicant at the hearing and the genuineness of those reports together with other issues which are now not relevant before this Court concerning the political activities of the Applicant. By letter dated 27 April 2005 the Applicant’s representatives responded to the second Tribunal’s invitation dated 29 March 2005 in detail.
It is appropriate, however, before setting out the findings and reasons of the Tribunal, to note the earlier correspondence of 7 March 2005 which does not appear to have received specific attention from the Tribunal in its findings, though it is noted that after that letter there was a further hearing conducted on 9 March 2005 and issues were then canvassed as to both the political claims by the Tribunal and his beliefs in Christianity which in part were referred to earlier in this decision in the extract of the material under the heading "The hearing."
In its decision under the heading "FINDINGS AND REASONS" the second Tribunal relevantly states the following:
“The Tribunal does not accept that the applicant is a Christian convert. First, he claimed to have converted as a result of a revelation while in hiding after ... arrest mid-2000. However, the Tribunal has not accepted that he had reason to go into hiding and does not accept that he was in hiding. Second, regardless of the applicant's views of Mohammed as a prophet, this was not a particularly compelling reason to adopt a totally different belief system. Third, the evidence as to the applicant's participation in religious life in Australia was rather limited.
It follows that the Tribunal does not accept that the applicant faces a real chance of serious harm in Iran due to his religion. It does not accept that his limited participation in Christian activities in Australia will bring him to the adverse attention of the Iranian authorities or community, or that he will practise Christianity on return to Iran.
The Tribunal acknowledges that, as someone who has lived abroad for several years, the applicant may face questioning on return. The Iranian authorities may learn that he was able to stay abroad because he had a protection visa application on foot. The country information indicates that this by itself does not occasion a real chance of serious harm. The suggestion that harm may arise because the applicant exhibits signs of anxiety is no more than speculative.
The Tribunal does not accept that the applicant has a well‑founded fear of persecution within the meaning of the Convention.”
Submissions
It was submitted on behalf of the Applicant that the adverse finding in relation to the Applicant's conversion to Christianity was a finding which demonstrates jurisdictional error. Criticism was made of the logic of the decision, though that of itself, it was conceded, may not lead to a conclusion that jurisdictional error has occurred. Specific reference was made to the lack of any reasoning and/or adverse finding concerning the baptism and the evidence of the priest which had been given before the first Tribunal.
It was argued that either the second Tribunal disregarded that material, simply overlooked it or forgot to mention it. It was submitted that at the very least, the issue of baptism should have been addressed. It was submitted that this is particularly important in light of the fact that the Tribunal had clearly rejected the claim of a revelationary conversion during the Applicant's period of hiding in Iraq. The reasons of the Tribunal were, it was submitted, critically "silent" on his baptism in Australia and the effect his perceived apostasy may have upon return to Iran.
Specifically, it was noted that the second Tribunal did not criticise the Applicant's level of knowledge of Christian beliefs but rather in its conclusion, set out earlier in this judgment, made an adverse finding and in support of that finding, as the third ground, claimed that the evidence as to the Applicant's "participation in religious life in Australia was rather limited" (emphasis added).
In support of the submissions in relation to the claimed jurisdictional error, reliance was placed upon the Full Court of the Federal Court decision in the matter of NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263). Specifically, reliance was placed upon the following passage from the court's decision:
“53 It is desirable first to restate the uncontroversial proposition that mere factual error by the Tribunal will not ground judicial review unless it relates to a jurisdictional fact or is a manifestation of some error of law, substantive or procedural, which constitutes jurisdictional error and thereby vitiates the purported decision. This is evident from the discussion, in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, of jurisdictional error as a ground for the review of Tribunal decisions under the former Pt 8 of the Migration Act. If the Tribunal identifies a wrong issue or poses the wrong question for itself or does not have regard to relevant material or takes into account irrelevant material, so as to affect the exercise of its powers, error of law and/or jurisdictional error may be identified (at 351-352 per McHugh, Gummow and Hayne JJ). An error of fact in the course of a decision is unlikely to be a jurisdictional error unless the fact is a jurisdictional fact:
‘Courts should be slow to find that an erroneous finding of fact or an error of reasoning in finding a fact, made in the course of making a decision, demonstrates that an administrative Tribunal so misunderstood the question it had to decide that its error constituted a jurisdictional error.’
Re Minister for Immigration and Multicultural Affairs; Ex parte Cohen (2001) 177 ALR 473 at 481 [35] per McHugh J.”
Further reliance was placed upon the following passages from the same decision:
“58 The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an Applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the Applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
…
63 It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the Applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the Applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an Applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the Tribunal fails to consider a contention that the Applicant fears persecution for a particular reason which, if accepted, would justify concluding that the Applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal’s published reasons for decision.’
In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.”
It was further submitted, particularly in support of ground 2, though it perhaps should be noted that the grounds to some extent overlap, that in this case the failure on the part of the Tribunal to consider the Applicant's claim that he underwent formal conversion to Christianity and the failure to consider the baptism certificate which had been produced, together with the evidence given at least at the first Tribunal concerning that issue in the Applicant's conversion, were sufficient to constitute jurisdictional error.
Reliance was placed upon the Full Court decision of the Federal Court in Applicant WAEE v Minister for Immigration and Multicultural Affairs (2003) 75 ALD 630 (WAEE). That case involved an Applicant who is a citizen of Iran who had arrived in Australia with his wife and children and applied for a protection visa. That application had been refused and the Applicant applied to the Refugee Review Tribunal for review of a delegate's decision. One of the issues in that case concerned the marriage of the Applicant's son to a Muslim woman which the appellant in that case claimed had repercussions for him and his family. In the court's decision the following reference is made to that issue:
“34 The Tribunal made no express reference in its discussions and findings to the claimed fears of persecution arising out of the marriage by S to a Muslim woman. It did make reference to the appellant's contention in the course of its overview of what it called `the applicant's case'. In that overview the Tribunal said:
`The Applicant conceded he had once visited Australia and that his spouse had made three previous visits to Australia. In response to the Tribunal's comments that their return to Iran on each occasion suggested they did not fear persecution because they are Mandean, the Applicant's spouse responded that they had no personal problems other than the problems caused by [B1's] suitor and [S's] marriage to a Muslim. In regard to [S], the Applicant explained that [S] went to the Imam's office to register his intention to marry and that act provoked the Imam's officers into threatening to arrest him.'
Further in its reasons the Tribunal said:
`The Applicant and his spouse both told the Tribunal they feared they would be killed by Muslims from the Mullah's office because of [B1] and [S].'
These were the only references in the reasons to the contentions about S and the Tribunal made no express finding on it. After referring to extensive country information it encapsulated the appellant's claims thus:
`The Applicants have put forward various claims about the sexual humiliation of [I] and [Y] abduction of a Mandaean woman and the seeking of forced conversion to Islam.'
In its concluding paragraph, the Tribunal said:
`In all of the circumstances, the Tribunal finds that the Applicant spouse's claim about her abduction was fabricated and that claims the family was harassed by [B1's] rejected suitor have also been contrived or broadly embellished. Similarly, the claims regarding the school experiences of the minor Applicants have been embellished, although it is plausible [I] was injured in an accident that arose from some teasing about religion. The Tribunal accepts that the Applicants are members of a minority religion but it is not satisfied that they have any well founded fears of persecution for reason of their religion. Nor do they have well-founded fears of persecution for reason of political opinions that might be imputed to them because they have applied for refugee status in Australia. In the absence of other Convention-related claims the Tribunal is not satisfied that they are persons to whom Australia has protection obligations and it finds that they do not meet that criterion for the purposes of the grant of a protection visa.'”
Both parties in the present case relied upon the decision of the Full Court in WAEE and it is appropriate to set out the following passages from the court's decision relied upon by both parties:
“46 It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised `with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.
47 The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.
48 In the present case it was clearly a significant element of the appellant's application before the Tribunal that the marriage of his son S to a Muslim woman would have repercussions for him and his wife upon their return to Iran. It was clear also that he was contending that these repercussions would amount to persecution for a Convention reason. That is to say the religion of S and his wife. The contention was advanced in the wider context of general attitudes to members of the Sabian Mandaean religion by Muslim people in Iran.
49 The material put before the Tribunal on the son's intermarriage issue and the contentions advanced in respect of it went directly to the criterion for the grant of a protection visa set out in s 36. While the Tribunal recounted the appellant's claims on this issue early in its reasons, its failure to consider the evidence and the contention leads to the inescapable conclusion that it failed to address the issue.”
The Applicant argued that in this instance, the failure to deal with the precise nature, source and content of the fear of persecution of return held by the Applicant was sufficient to constitute jurisdictional error. Particular emphasis was placed upon the baptism certificate and evidence concerning the baptism certificate and the Applicant's conversion from the priest.
Apart from relying upon the authority of WAEE referred to earlier, it was submitted for and on behalf of the First Respondent that in this instance the Tribunal had not fallen into jurisdictional error. Specifically, it was submitted that the Tribunal did not need to consider the baptism certificate or evidence concerning that certificate or otherwise consider the evidence of the priest in relation to that issue or the Applicant's conversion. It was submitted that in this instance the Tribunal made a finding of greater generality and ultimately concluded that it was not satisfied the Applicant had converted to Christianity. It did so on other grounds.
It was specifically argued that the priest's evidence that he had been willing to accept the Applicant for baptism notwithstanding the Applicant's knowledge of Christianity was only basic and that he attended church semi-regularly did not mean that the Tribunal was bound to accept that the Applicant was a genuine convert. It was argued that the Tribunal dealt with the Applicant's claim of conversion to Christianity. It therefore dealt with a significant integer of the claim before it and made an adverse finding. It dealt with, it was claimed, the Applicant's limited participation in Christian activities in Australia.
It was argued that the baptism was taken into account in what is described as a finding "of greater generality, namely that the Applicant had not in fact converted". It was argued that the Tribunal clearly understood the Applicant claimed he converted to Christianity and the Tribunal clearly rejected the claim, and in doing so had not misconstrued the claim. Hence it was submitted, as I understand it, that there was no jurisdictional error.
Reasoning
In my view the question of conversion to Christianity was clearly a significant claim squarely raised by the Applicant. Whilst I accept that in this instance the second Tribunal has clearly made a finding directly in relation to that claim, it did so in circumstances where it could be properly concluded that it has not considered what I regard to be a critical part of the material then available to the Tribunal, namely the baptism certificate. It has made no finding on this critical piece of evidence. It has made no finding as to the evidence previously available to the first Tribunal from the priest, both in relation to the authenticity of the baptism certificate and in relation to the Applicant's conversion.
If the second Tribunal were minded to reject the Applicant's conversion to Christianity, then in my view at the very least it should have made a finding in relation to the baptism certificate and its authenticity, together with at least some finding, even if it required recalling the priest, as to the evidence of the priest concerning the baptism and the Applicant's conversion to Christianity.
I accept the authorities referred to by the parties, and in particular the decision of the Full Court of the Federal Court in WAEE that it is not necessary for the Tribunal to refer to every piece of evidence or every contention made by an Applicant in its written reasons. However, I do not take that authority to mean that in a case of a claimed Christian conversion, a baptism certificate certifying that the Applicant has "received the sacrament of holy baptism and confirmation according to the holy rites of the Syrian orthodox church" does not need to be addressed.
That document must surely be prima facie evidence of conversion, and it is evident both in terms of the first Tribunal decision and the written submissions for and on behalf of the Applicant dated 7 March 2005 that the Applicant relied upon that certificate. I regard the certificate as a significant element of the Applicant's case before the second Tribunal. In many ways, that certificate may be likened to any other certification, for example a marriage certificate. When dealing with the genuineness of a marriage, courts and/or Tribunals cannot be simply dismissive of a certificate which at the very least provides prima facie evidence.
In any event, even if the subsequent general findings adverse to the Applicant lead to the conclusion that the certificate and its prima facie effect is subsumed in that general finding, there is in the present case the more significant issue of the evidence of the priest who issued the certificate and, further, who gave evidence concerning the Applicant's conversion.
At the very least that evidence should have been considered, and if necessary the second Tribunal may have sought to recall that witness in order to test the witness's evidence. Instead, the second Tribunal in my view has disregarded that significant element of the Applicant's application namely, the baptism as being evidence of his conversion when combined with the evidence of the priest and has proceeded to make its decision, relying on what might be described as somewhat brief grounds set out in the extract found earlier in this judgment.
The second Tribunal seems to have progressed from its adverse finding as to the claim made by the Applicant concerning the revelation while in hiding to then be somewhat dismissive of the weight it would give to the Applicant's views of Mohamed as a prophet, and then further, in very brief terms, referred to what it described as the "rather limited" evidence of the Applicant's participation in religious life in Australia.
Its findings do not seem to address squarely the material, or at least part of the material relied upon by the Applicant in support of his claim of Christian conversion, which I am satisfied required the Tribunal to at the very least address the baptism certificate and the evidence of the priest associated with the issue of that certificate and the Applicant's conversion to Christianity.
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
In my view, for the reasons given, and applying the appropriate principles concerning jurisdictional error, it follows that the decision of the Tribunal should be quashed and/or set aside and consequential orders made, including an order that the First Respondent pay the Applicant's costs of this application.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 4 April 2006
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