SBAF v Minister for Immigration and Multicultural and Indigenous Affairs

[2002] FCA 686

FEDERAL COURT OF AUSTRALIA

SBAF v Minister for Immigration & Multicultural & Indigenous Affairs

[2002] FCA 686

SBAF & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

S.224 OF 2001

MANSFIELD J
6 JUNE 2002
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S.224 OF 2001

BETWEEN:	SBAF & ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	6 JUNE 2002
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicants pay to the respondent costs of the application.

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.224 OF 2001

BETWEEN:	SBAF & ANOR APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MANSFIELD J
DATE:	6 JUNE 2002
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicants are husband and wife.  They arrived in Australia on 19 April 2001.  On 26 April 2001 they each applied for a protection visa under the Migration Act 1958 (Cth) (the Act). To be eligible for the grant of that visa, they had to satisfy the criteria specified in the Act and in the Migration Regulations. Relevantly for present purposes, s 36(2) of the Act imposed the criterion that the respondent, and on review the Tribunal, is satisfied that the applicants are persons to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol, using those terms as defined in the Act (the Convention). Article 1A(2) of the Convention defines a refugee as any person who:

   “ …owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

2. On 8 August 2001 a delegate of the respondent refused the two applications for protection visas under the Act, and on 30 November 2001 the Tribunal affirmed those decisions.

   THE CLAIMS

3. To the extent that it is necessary, I shall refer to the claims of the male applicant and of the female applicant separately.

4. The male applicant was born in 1973 in Hamdan in Iran.  He is of Kurdish ethnicity, and was born a Sunni Muslim.  He undertook secondary education, and subsequently has worked as a self-employed car salesman and developer, other than for a period in 1993-1994 when he undertook military service.

5. The Tribunal accepted that in 1999 he and a cousin had come across a demonstration concerning the handing over of the Kurdish leader Ujalan to the Turkish authorities.  It descended into violence.  The applicant and his cousin took an injured person to the hospital.  They were accused of being part of the demonstration, and detained.  The applicant was held for 70 days before being released.  He was required to report to the police on a regular basis until 2000.  He was released because no evidence was found of his involvement in the protest.

6. The balance of his claims were not accepted by the Tribunal.  In essence, he claimed to have become interested in Christianity during his period of national service, and had maintained that interest thereafter.  Through contact with other persons interested in Christianity, he had met the female applicant and they had decided to marry.  In 1999 they went through a form of “temporary marriage”.  In December 2000, they married in Iran as Muslims.

7. The male applicant also claimed that, in March 2001, his father’s house was raided.  It was claimed that the raid was under the pretext of there being a satellite dish in the area, and the use to which it was being put was being investigated.  That, however, was said to be a pretext for endeavouring to investigate the applicants’ activities as Christians.  The authorities found significant Christian books and other materials and commenced looking for the applicants.  They fled, on falsely procured passports, through Turkey and eventually arrived in Australia.

8. The male applicant claimed that he would be killed upon his return to Iran because he had converted to Christianity, compounded by his illegal departure when being sought by the authorities.  He feared that he was more vulnerable to persecution for those reasons because his father had been a landlord in the previous regime under the Shah and following the revolution in 1979 had been imprisoned for four years.

9. The female applicant is 25.  She also was born in Hamdan, and after completing secondary school she worked as a self-employed pottery painter.  She said that she had been refused university entrance and government employment because her father had been associated with a previous regime.

10. The Tribunal accepted that the female applicant’s brothers had each left Iran in about 1999.  Two of her brothers gave evidence before the Tribunal.  It also accepted that the female applicant, her mother and her grandmother had been harassed by the authorities after the departure of her brothers to identify their whereabouts, because they were suspected of being anti-regime.

11. Again, the balance of the female applicant’s claims were either not accepted by the Tribunal or were regarded by it as not of particular relevance to her claims.  She claimed that, in 1996 when she was travelling with her brother, she and her brother were apprehended because the authorities thought they were together in public as boyfriend and girlfriend.  She was not then arrested but her brother had his head shaved and was whipped.

12. She told the Tribunal that she had developed an interest in Christianity during her high school years.  Between 1997 and 1999 she, the male applicant and others had had regular fortnightly meetings at which they discussed Christianity and ethical and moral issues.  They had done so without particular trouble from the authorities.  At Christmas 1999, they were celebrating when the authorities raided the premises, and they were arrested.  The female applicant was questioned for 15 days before being released, and she says that she denied that she had been attending those premises because she was a Christian.  She attempted to cut her wrists during the period she was in detention, and said she was in a very bad physical and mental state when she was released.  After about a month following her release, however, she resumed spasmodic contact with that Christian group in a low profile way to continue her discussions regarding Christianity.

13. The applicants wished to marry but were unable to marry as Christians in Iran.  In September 2000 she went to Malaysia, on a valid Iranian passport, for the purpose of exploring marrying the male applicant in Malaysia in a Christian ceremony.  She told the Tribunal that she learnt that she and the male applicant could do so, but would then be unable to return to Iran as married Christians because the authorities would regard them as apostates and would arrest them and inflict severe punishment on them, if not kill them.  She therefore returned to Iran.  Before she did so, she claimed to have been baptised into the Christian religion.  Subsequently, as noted, she and the male applicant married in Iran as Muslims in December 2000.

14. She confirmed the raid upon the house of the male applicant’s father on 3 March 2001 under the pretext of searching for material relevant to the use of a satellite dish, but in reality because she and the male applicant were suspected of Christian proselytising.  She confirmed that Christian materials were found in the house and that she fled with her husband through Turkey, eventually arriving in Australia.

15. As with the male applicant, essentially she told the Tribunal that she feared returning to Iran because of her conversion to Christianity.  She also feared that, because she had illegally departed Iran when being sought by the authorities, she would be readily detected and penalised.  She further feared that the male applicant would be imputed with an association with the Komeleh, a pro-independence Kurdish party, because of his arrest and detention following the demonstration in 1999.

    THE TRIBUNAL’S REASONS

16. The Tribunal correctly identified the essence of the applicants’ claims to be refugees as depending upon their claims to have converted to Christianity, and to fear persecution by reason of their apostasy upon their return to Iran.  The delegate of the respondent had accepted that they had converted each to Christianity, but concluded that they were not of sufficient profile to attract the attention of the authorities even though Iranian law provided the death penalty for those convicted of apostasy.  The evidence before the delegate of the respondent indicated that law was not enforced except against those who proselytised or who were of a high profile.

17. The Tribunal took a different course.

18. It did not find the applicants to be credible witnesses.  It described their evidence at the hearing as containing “several implausibilities and discrepancies such as to lead the Tribunal not to accept that they embraced Christianity in Iran, nor that their homes were raided by the authorities, nor that the authorities found incriminating items attesting to their adherence to Christianity”.  It gave a series of reasons for reaching that conclusion.  They are principally related to the evidence of the female applicant.  It accepted, on the basis of country information to which it referred, that conversion to Christianity can result in serious punishment.

19. However, it found the female applicant’s claim that she did not proceed to arrange for a marriage in Malaysia because she learned that if the applicants returned to Iran with Christian marriage certificates they would be killed by the authorities as “implausible”.  That was because that claim was “disingenuous and inconsistent with the claim that she went to explore marriage possibilities because she feared marrying as a Christian in Iran”.  The Tribunal did not accept that it would not have occurred to the female applicant before she went to Malaysia that returning with a Christian marriage certificate would pose exactly the same danger as marrying as Christians in Iran.

20. The Tribunal also said it was unable to accept her claims that she had attended regular weekly or fortnightly meetings at the home of a Christian family for in excess of two years before Christmas 1999, or that the Christmas celebrations were then interrupted by a raid from the authorities.  That is because the Tribunal found it “implausible” that the neighbours would not have noticed the applicant’s visits to the house over that period.  I do not understand why the Tribunal might not have considered that the neighbours might not have perceived the regular meetings were gatherings of Christians, even if the reporting of private and quiet Christian gatherings would attract the attention of authorities, up to that time.  I do not imagine that meetings of persons in a private house without causing undue noise are per se suspected of being meetings of Christians.  The Tribunal also found it “implausible” that people celebrating at a Christmas party would allow themselves to become noisy and conspicuous enough to prompt the neighbours to contact the authorities.  It also found as “implausible” that the father of the household would not have been charged with some criminal conduct because it found it “highly unlikely” that the authorities would fail to suspect that a Christmas celebration attended by Muslims involved religious activity and attempted proselytising.  Independent country information indicated that the authorities are highly suspicious of any proselytising of Muslims by non-Muslims.

21. The Tribunal was also unable to accept the claim of the female applicant that, despite being in a distressed mental and physical state, within a month of her release she again commenced visiting the home of another Christian despite the significant risk of detection and harsh treatment.  It did not accept that the female applicant would have been prepared to take such a risk.

22. It further did not accept that the female applicant had been baptised in Malaysia, because it did not believe her claim that she had taken a baptismal certificate with her to Iran.  To do so, in its view, would be no less risky than returning with a Christian marriage certificate.  It also rejected her claim to have returned from Malaysia with photographs showing her at a church.  Consequently, it also did not accept that her baptismal certificate and the photos which she claimed were found by the authorities at the raid on 3 March 2001 were found in a raid at that time.  It also rejected the claim that the raid was under a pretence of searching for information about a satellite dish, because independent country information indicated that the authorities did not need such a pretence to conduct such a raid.

23. So far, it can be seen, the Tribunal had not dealt specifically with anything concerning the credibility of the male applicant.  It proceeded to do so.  He had claimed that after his arrival in Australia his family had told him that security forces had come to his house alleging that he had been in contact with the Komeleh.  He speculated at the hearing that their suspicion may have flowed from inquiries about how he had left Iran.  The Tribunal said:

    “No evidence has been provided to the Tribunal to indicate how the authorities would have been able to trace the couple’s exit route … to Turkey.”

    Based on this and on the Tribunal’s earlier findings about the applicants’ overall credibility, the Tribunal regarded this set of claims as an invention designed to embellish the claim that the couple are being sought by the authorities.

24. Consequently, it did not accept either of the applicant’s claims about embracing Christianity in Iran, or about their friendship with Christians, or that the applicant husband spoke about Christianity to his family and friends, or about the applicant’s wife’s baptism in Malaysia, or that their respective homes were raided by the authorities and incriminating evidence of their Christian leanings discovered, or that the authorities visited their families after their departure because of the discovery of their Christian leanings, or that the applicant’s husband’s brother and sister-in-law were detained because of the applicant’s Christianity.  Hence it did not accept that they fled the country to avoid persecution because of their new faith.

25. Upon analysis, the Tribunal’s reasons for rejecting those claims appear to be based only upon the following:

    ·implausibility of the claim that the female applicant (or the applicants) did not think before she went to Malaysia that returning with a Christian marriage certificate would pose the same danger as marrying in Iran as Christians, or as re-entering Iran from Malaysia with a Christian baptismal certificate;

    ·two improbabilities about the asserted raid by the authorities at Christmas 1999, (only one of which, in my view, is logical) together with the relatively small penalty imposed upon the householder where those activities were taking place;

    ·its assessment that the female applicant, despite her claims to be a practising Christian, would not have resumed any Christian contact after that incident; and

    ·needless attribution to the authorities of a pretext for the raid in March 2001.

26. The Tribunal also addressed the question of whether the applicants, by their adherence to Christianity in Australia, might have a well-founded fear of persecution for a Convention reason.  The applicants had nominated a pastor to give evidence at the hearing, and he had done so.  He gave evidence that the applicants were sincere in their adherence to the Christian religion.  The Tribunal rejected that claim in the following terms:

    “However, on the basis of its findings about the applicants’ credibility, particularly in relation to their claims to have embraced Christianity in Iran, the Tribunal is of the view that the applicants’ Christian activities commenced in Australia and were undertaken with the express purpose of strengthening their claims to refugee status.  The Tribunal does not accept that their claimed adherence to Christianity is genuine.  In accordance with s 91R(3), the Tribunal has therefore disregarded that conduct for the purpose of determining whether the applicants are refugees under the Convention.”

    Section 91R(3) directs the Tribunal to disregard conduct engaged in by a visa applicant in Australia unless satisfied that the person engaged in that conduct otherwise than for the purpose of strengthening that person’s claim to be a refugee within the meaning of the Convention.  Its conclusion clearly depended on its earlier rejection of the applicants’ claimed interest in Christianity whilst in Iran.

27. Finally, I note that the Tribunal did not decide whether it accepted the claims as to the activities of the male applicant’s father prior to the 1979 revolution, or of the female applicant as to her father’s previous association with the previous regime and why her brothers had left Iran.  It said that those matters would not give rise to a well-founded fear of persecution on the part of either applicant even if true.  No particular complaint is made about that analysis.  Nor is any complaint made about the findings of the Tribunal that, at the time the female applicant left Iran for Malaysia and returned, because she was able to travel on a lawful passport and to obtain an exit visa, she did not then have an adverse profile with the authorities, or that at least to 1999, when the male applicant was released because he was found not to have participated in the demonstration despite suspicions initially held to the contrary, the male applicant did not have an adverse profile with the authorities.

    CONSIDERATION

28. The applicants jointly filed their notice seeking review to the Court, together with a contention in the form of a document headed “affidavit”, and subsequent written submissions dated 11 February and 4, 5 and 6 March 2002.  They appeared in person and made oral submissions through the male applicant.  In essence their complaint is of the Tribunal’s conclusion that they did not sincerely convert to Christianity as being “without any basis or foundation”.  The application asserts that the Tribunal’s decision was arrived at without good faith, upon arbitrary findings, and with no examples of discrepancies and inconsistencies.  As I read the Tribunal’s reasons, it is correct that the Tribunal did not identify discrepancies or inconsistencies in their evidence, although it did not find their evidence to be credible because it contained “several implausibilities and discrepancies”.  It did not refer to any discrepancies.  It referred to several “implausibilities” to which reference has been made above.

29. It was submitted that the Tribunal had accepted the male applicant’s “experience and participation” in the demonstration in March of 1999, but had then contradicted itself by subsequently finding that the male applicant would not have had an adverse profile after his release following that demonstration because he was found not to have participated in it.  I do not think any error is shown in the Tribunal’s reasoning in that regard.  The contention, in my view, does not recognise that the Tribunal accepted the male applicant’s account of his experience at that demonstration, and his detention.  His account did not assert that he was a participant in the demonstration, but a bystander.  There is no inconsistency in the Tribunal’s findings.

1. The applicant pointed out that the Tribunal accepted that both applicants possessed an apparently satisfactory level of knowledge about Christianity.  That is correct.  It is then contended that the Tribunal unreasonably dismissed their sincerely held belief in Christianity.  It does not follow from the applicants having an apparently reasonably detailed knowledge about Christianity that they then have a sincere and genuine conversion to Christianity.  Although knowledge of Christianity is of course an indication, and a significant indication, of a conversion to Christianity, it is not necessarily a logical consequence of such knowledge that such a conversion has taken place.  Although the Tribunal has not sought to reconcile their level of knowledge of Christianity with its findings, it is not shown to be in error on the basis of those two findings being inconsistent.  They are not necessarily inconsistent.

2. The applicants also contend that the Tribunal unfairly rejected their claim to have converted to Christianity in the light of the decision of the delegate of the respondent to the contrary.  In my judgment, that criticism misapprehends the nature of the Tribunal’s function.  Under s 414, it is obliged to review a decision of a delegate of the respondent once a valid application for review is instituted.  Effectively, then, the Tribunal is placed in the same position as the initial decision maker:  see s 415.  It is to exercise all the powers and discretions conferred by the Act upon the person who made the initial decision.  It may affirm or vary the decision, or set it aside and substitute a new decision.  In my judgment, the Tribunal is not bound by any findings of fact of the delegate of the respondent whose decision it is reviewing.  It is to approach the review afresh.  Accordingly, I reject that contention.

3. The fourth contention in the “affidavit” in my judgment involves only an argument about a finding of fact which the Tribunal made.  It seeks to re-argue the Tribunal’s conclusion that it was not understandable that the female applicant should go to Malaysia exploring the prospect of marriage, without realising that returning to Iran with a Christian marriage certificate could expose them to serious trouble.  It was upon that realisation that they said their plan of marriage in Malaysia was abandoned.  The Tribunal recognised their claim.  It dealt with it in the way described above, namely to reject the evidence that they reached that realisation only while the female applicant was in Malaysia.  In my view it has not fallen into error in that regard.

4. There is some overlap in the points made in the subsequent documents submitted by way of contention.  One contention is that the Tribunal “closed his investigation from the applicant wife”, in effect by not asking her what she feared if she returned to Iran.  There is no suggestion that the Tribunal misapprehended the nature of her claimed fears in that regard.  They were expressed in her initial interview statement, and in her application for the visa, and subsequently in the separate submissions made on her behalf by her migration agent in submissions made to the delegate of the respondent on 31 July 2001 and later to the Tribunal undated but received on 2 October 2001.

5. The applicants also complain that the Tribunal did not explore in great detail with the male applicant the possibility that he may be perceived as being involved in the Komeleh by reason of his arrest in connection with the demonstration.  However, the Tribunal was aware of that claim.  It was not in my judgment in error in pursuing the claim with the applicants only to the extent to which it did so.  It dealt with that claim towards the end of its reasons, indicating that, even if it were so, the applicants would not now have a well-founded fear of persecution by reason of any political opinion imputed to the male applicant in March 1999.  It found, by reason of his release, that he was no longer imputed with any significant anti-regime political opinion.

6. The applicants next complain that, in some way, the Tribunal abridged the hearing because of a lack of time to conduct the inquiries which it felt it ought to conduct.  I shall treat the complaint as one of failure to provide the applicants with the hearing to which (arguably) s 425 entitles them.  The nature of the obligations in ss 424A-424C, has been recently considered in Minister for Immigration & Multicultural Affairs v Cho (1999) 92 FCR 315; De Silva v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 364; Algama v Minister for Immigration & Multicultural Affairs [2001] FCA 1884; W284 v Minister for Immigration & Multicultural Affairs [2001] FCA 1788.

7. In this matter, apart from evidence from each of the applicants at the hearing, evidence was received from Pastor Bagheri, a witness nominated by the applicants to give evidence pursuant to s 426 of the Act, and by two brothers of the female applicant.  The Tribunal gave the applicants the opportunity to ask questions of those two brothers.  It is suggested that the Tribunal then said words to the effect that the hearing was taking too long and the interpreter was tired, so further questions ought not be pursued.  There are three double sided tapes of the hearing before the Tribunal.  The recording does not disclose that the Tribunal abridged the hearing.  It lasted about five hours.  In the course of giving his evidence, the male applicant complained about being stopped whilst his answer was interpreted.  The following exchange occurred:

   “INTERPRETER:      Has to pause for the interpreter to enable the interpreter to interpret what he has said.  That causes him lack of concentration and not being able to say all the things he wants in order.

   MEMBER:      I understand your point, but you also have to understand that in order to make sure that we have the best possible interpretation of your words you do have to pause so that the interpreter can understand exactly what you’re saying and so that I can also follow.  I hope you appreciate this.

   INTERPRETER:        I am quite aware of this situation, but I just wanted to request from you that this matter should be considered as well, in what sort of situation we are.

   MEMBER:      Yes, of course, I understand that your situation is a very serious one.  I understand that we’re talking about your future but I hope you understand that I have to have the clearest understanding of what your claims are.”

   A similar problem arose towards the end of the hearing.  The male applicant was invited to make any further comments.  He was interrupted only to ensure that what he said could be interpreted accurately and fully.  The Tribunal again explained the need to proceed in that way.  The recording does not reveal that the applicants were prevented by time considerations from saying to the Tribunal what they wished to say.  The Tribunal allowed a couple of breaks during the hearing, and at one point the interpreter reported that she needed to have the male applicant pause after every few sentences, so she could accurately interpret.  The Tribunal did not at that point, or at any point, request or urge or direct the applicants not to continue the evidence in the hearing because the interpreter was tired.  In my view, it has not been shown that the Tribunal in the course of the hearing caused or requested the applicants to abridge their evidence, or the evidence of their witnesses, or questions or matters the applicants wished to raise.

8. There were other complaints about the way the Tribunal conducted the hearing.  It was contended orally and in certain of the written submissions that the Tribunal was asked by the applicants whether, if it had any doubts as to their claims, it would let them know so they could adduce further evidence in support of them.  They claim that they did not hear further from the Tribunal  They now assert that there is evidence available to them that the female applicant in fact converted to Christianity and was baptised in Malaysia.  They presented a letter from a Malaysian resident who confirmed that the female applicant met with a Christian pastor in Malaysia, and a letter from that pastor confirming her Christianity.  I accept that there is available to them evidence to support that claim..  They further assert that at the hearing when the female applicant was asked about the circumstances of her conversion in Malaysia, she gave the name of the person they now have nominated as a witness and said that he is a pastor in the Christian church there.  They claim that the translator did not interpret into English that the person they nominated is a pastor, although his name was given.  They further assert that, at the completion of the hearing, the Tribunal in response to questions of them said that the Tribunal had no doubts about their Christian beliefs, and that if any such doubts emerged the Tribunal would let them know so they could then provide additional evidence.

9. In the recording of the hearing, the Tribunal did ask who converted the female applicant in Malaysia.  Contrary to their contention, the fact that it was a pastor was translated as part of the answer.  In addition, the recording of the hearing does not disclose any undertaking by the Tribunal that it would further contact the applicants if it was worried about any part of their claims.  It was at pains to give the applicants and their adviser the opportunity to make such comments as they wished at the end of the hearing.  At the conclusion of the male applicant’s evidence, the following exchange occurred:

   “MEMBER:    I have no more questions at the moment, but as I said at the end of the hearing I will invite you to make any further comments that you would like to make.  Now I am going to take evidence from the pastor and also from your wife’s two brothers.

   INTERPRETER:        My question is that to what extent the case officer accepted my claims.  I have a lot to say but I don’t want to take your time.  If there are any areas which are not clear to you I am prepared to explain further.

   MEMBER:      Thank you very much.  I have no further questions about any areas which are unclear, but after I have taken evidence from the three witnesses and after I have heard your adviser, if I have any further questions then I will ask you.

   INTERPRETER:        I don’t know what you are going to talk about to my adviser, but the thing is, with the case officer at the end of the interview, the case officer told me that he understands my claims and he accepts them and he accepts that I have been a Muslim and I have converted to Christianity but yet he rejected me.  This is my life he rejected, not the life of my adviser or anybody else.

   MEMBER:      Yes, I understand and I understand how you feel, but it’s important that I speak to your adviser because he is the only one who has experience in handling cases like yours and he’s able to bring to my attention anything which he thinks that I haven’t raised with you or that you haven’t mentioned to me.”

   Later in the course of that exchange, the male applicant said that the “case officer” (referring to the delegate of the respondent) had wrongly concluded that the applicants would not be persecuted if they returned to Iran, even though they were accepted by the delegate to have converted to Christianity.  The Tribunal simply replied:

   “We’ll take evidence now from the other witnesses and I’ll hear your adviser and then if you have any further comments to make at the end I’ll invite you to do so, but I have listened very attentively to what you have been saying.”

   Towards the conclusion of the hearing, the male applicant was given the opportunity to make further points to the Tribunal.  The following is recorded:

   “MEMBER:    I have no further points or questions but before I conclude the hearing, [name] have you any other points which you would like to make which you don’t feel you’ve already covered.”

   INTERPRETER:        I’d like to say that the situation was that after you heard the evidence of the witnesses if there was any doubt or any matter unclear to you if you could – to me and I’ll do my best to clarify that matter –

   MEMBER:      After the hearing I’ll go away and very carefully consider all of the evidence that I’ve heard today as well as the evidence on the file and I will listen to the tape of your interview with the department.  If I have any further questions arising from that, I will pass those onto your adviser.”

   The female applicant was also given that opportunity.

10. I do not consider that the Tribunal misled the applicants in any way.  It gave no indication that if the Tribunal was doubtful about any aspect of their claims, it would give them a further opportunity to adduce evidence and to make submissions on the matter. It reserved to itself the opportunity, if necessary, to re-open the hearing.  But its purpose, as expressed, was not as the applicants claim.  It made it clear that it expected to give its decision on the matter without any further hearing.  In my judgment, its conduct of the hearing did not involve any departure from its obligations to accord procedural fairness to the applicants either under the Act or at common law:  see Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; Re Refugee Review Tribunal; Ex parte Aala (2000) 176 ALR 219. The applicants, on the basis of their contentions on this application, did not then expect that the Tribunal would alter that part of the decision of the delegate of the respondent which accepted they held Christian beliefs. The Tribunal’s function was however to make its decision as if it were in the shoes of the delegate: ss 414 and 415 of the Act. The Tribunal, in fulfilling its function, was entitled and indeed obliged to address each of the applicants’ claims afresh and to form its own views about those claims. Any expectation that the applicants held that the Tribunal would proceed on the assumption that they held Christian beliefs reflected a misconception on their part about the Tribunal’s role. The Tribunal did not cause or contribute to that misconception.

11. In those circumstances, the applicants were not entitled to assume that the Tribunal would revert to them before rejecting their claims to hold Christian beliefs, or before generally rejecting their evidence on that topic.  They were assisted in their claims by a migration agent.  They were given the opportunity under s 426 to request the Tribunal to call evidence, and in fact evidence was called from three witnesses in addition to the applicants.  They could then have requested that evidence be called from the pastor the female applicant saw in Malaysia and any other witnesses who would support the claim that they genuinely held Christian beliefs, or have arranged for that evidence to be presented to the Tribunal.  They did not do so.

12. The recording of the hearing, finally, simply does not support the applicants’ claim that the Tribunal told them that it had no doubts about their Christian beliefs.  The recording does not support any claim that the Tribunal indicated to the applicants or to either of them during the hearing that it accepted that they genuinely held Christian beliefs.

13. Accordingly, I do not accept that there was any irregularity in the Tribunal’s conduct of the hearing of the manner asserted by the respondents.

14. The overall picture which the applicants sought to present was that the Tribunal was actually biased against them, and that it did not undertake the review of the decision of the delegate of the respondent in good faith.  That picture, if made out, would enliven the Court’s powers to set aside the decision under s 39B of the Judiciary Act (1903) (Cth) because it would bring the application within one of the provisoes to the principles explained by Dixon J in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 615-616 notwithstanding s 474(1) of the Act.

15. I have concluded that the particular complaints of procedural irregularities on the part of the Tribunal, and the particular criticisms of its findings, are not made out. There remains to be considered whether the reasons of the Tribunal for rejecting the applicants’ evidence about their interest in and commitment to Christianity as not reliable evidences such a failure on the part of the Tribunal. Those reasons are summarised above, in particular after my analysis of them in [25].

16. In my judgment, those reasons do not themselves indicate that the Tribunal considered the applicants’ claims with a mind closed to their acceptance:  cp Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 81 FCR 71. Rather, they indicate that the Tribunal’s views about the reliability of those claims was formed as a result of its consideration of the evidence of the applicants during the hearing and upon consideration given to it after the hearing. Sometimes, one might infer lack of good faith from the reasons for the decision. They may be so capricious or irrational as to lead to the inference that no genuine consideration was given to the claims, or that the consideration given to the claims was directed towards an issue other than that which was strictly required. There may be other considerations which contribute to such a conclusion. Such cases will obviously be rare. They will not arise simply because other minds may have treated aspects of the evidence differently, or have attributed different weight to facets of the evidence. To approach the Tribunal’s reasons simply upon the basis that the Court may not or would not have reached the same conclusion if it had regard to the features of the evidence to which the Tribunal had regard would, in my view, be erroneous. Generally, it is for the Tribunal to decide the facts, and to decide what matters are of significance in reaching its decision on the facts. Ultimately, for the purposes of the criterion in s 36(2) of the Act, it is the satisfaction of the delegate of the respondent, and on review the satisfaction of the Tribunal, about whether that criterion is met that is required, rather than any objective finding of fact: see the observations of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-275.

17. In this matter, I do not infer from the Tribunal’s reasons for not believing the applicants’ claims to have held Christian beliefs for some time that it had actual bias or performed its review with a lack of good faith on its part.  The particular considerations of the Tribunal are not capricious or irrational.  They were considerations which appear to have emerged in part during the course of the hearing.  They were put to the applicants for comment.  The weight to be attached to them is a matter for the Tribunal.  It is neither helpful, nor appropriate, to indicate whether I consider that other minds might have given those considerations different weight, or might have had regard to other considerations, in reaching a conclusion on that issue.  The implausibility and improbabilities referred to are understandable although, as I have indicated, the Tribunal in one respect may have failed to consider another explanation for its conclusion.  That does not of itself advance the contention that the Tribunal did not bona fide address the claims.

    CONCLUSION

18. I have therefore reached the view that the Tribunal has not committed error of such a nature as to give rise to any order under s 39B of the Judiciary Act.  I accordingly dismiss the application.  I see no reason why the normal rule as to costs should not apply.  I order the applicants to pay to the respondent costs of the application.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated:             29 May 2002

Counsel for the Applicant:	The applicants appeared in person
Counsel for the Respondent:	Mr M Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	22 February 2002
Date of Judgment:	6 June 2002