SCAK v Minister for Immigration and Multicultural and Indigenous Affairs

[2003] FCA 191

FEDERAL COURT OF AUSTRALIA

SCAK v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 191

SCAK v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NO S 7 OF 2003

SELWAY J
ADELAIDE
13 MARCH 2003

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 7 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SCAK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	SELWAY J
DATE OF ORDER:	13 MARCH 2003
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.        The appeal is dismissed.

2.        The respondent have its costs of and in respect of the appeal.

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 7 OF 2003

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SCAK APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	SELWAY J
DATE:	13 MARCH 2003
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The appellant arrived in Australia in December 2000. On 24 July 2001, he lodged an application for a protection visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (“the Act”). On 16 August 2001, a delegate of the Minister refused that application and on 17 August 2001, the appellant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of that decision. On 15 February 2002, the Tribunal determined that it was:

   “…not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Therefore the applicant does not satisfy the criterion set out in s.36(2) of the Act for a protection visa.”

2. On 21 February 2002, the appellant applied under s 39B of the Judiciary Act 1903 (Cth) for judicial review of the decision of the Tribunal. That application was referred to the Federal Magistrates Court. On 13 December 2002, the learned Federal Magistrate dismissed the application with costs. The appellant has appealed that decision. The Chief Justice has determined that the appeal should be heard by a single Judge.

3. The learned Federal Magistrate correctly and accurately analysed the claim made by the appellant when the appellant was before the Tribunal.  I adopt her analysis:

   “The basis of the applicant’s claim to the Tribunal was that he had a well founded fear of persecution, such as to invoke Australia's obligations under the Refugees Convention and the Refugees Protocol by virtue of him having rejected Islam and his political opposition to the Islamic Regime.

   He was born a Shi’a, became disillusioned with Islam and the regime imposed by the Iranian Government and alleged a long term interest in Christianity as an alternative religion and way of life. He blamed the religious extremism of the Iranian Regime for the war against Iraq which led to displacement of his family and significant interruption to his education and was the genesis for his beginning to question Islamic doctrine and the policy of strict adherence to Islamic law imposed by the regime.

   He claimed to have been arrested some three or four years prior to coming to Australia by Officers of the Department of Social Corruption because of his dress and general appearance, to have been taken to the Department's headquarters and having been beaten and also having had the top of his head shaved.

   He claimed that approximately a year prior to leaving Iran he again had difficulties with the Basij forces due to his non participation in religious ceremonies.

   He was also apparently censored for listening to music and hanging pictures in his shop.

   He alleged that after several verbal clashes he was arrested, held in a small room for five hours and told that if he did not comply with directions his shop would be taken away from him. He claimed to have been beaten and released after he signed an undertaking not to continue his previous behaviour.

   He claimed to have met a customer at the dry cleaning shop who was Christian, claimed to have discussions with that customer from time to time about Christianity and the applicant's moral dilemmas in relation to his required adherence to the Islamic faith and claimed that as a result of those discussions he decided to take up the Christian faith in his own mind. He did not claim to have converted to Christianity whilst still in Iran.

   He claimed that as a result of his circumstances and of his developing anti-Islamic views he began to develop a fear for his own well being which progressed over a period of time to the extent that his fear became so great that he felt compelled to leave Iran.

   Shortly after arriving in Australia he began to attend at Christian classes with a Catholic priest at Woomera, learnt more about the basic doctrines of the Christian faith and considered himself to be a Catholic Christian.

   He was fearful that if he returned to Iran he would suffer persecution due to his rejection of Islam and his political opposition to the Islamic Regime and was fearful that because his new beliefs are not in line with those espoused by the regime he would be placed in a position where he would be considered as being in defiance of the government and subject under the Iranian religious code to the death penalty for apostasy.

   The applicant claimed to be 26 years of age and of Bakhtiari ethnicity. He is unmarried.

   He claimed to come from a devout Shi’a family and was concerned about the effect his rejection of those religious principles would have on his relationship with his family.”

4. The learned Federal Magistrate set out in some detail how the Tribunal analysed these claims.  I again adopt her comments:

   “After considering the applicant's claims the Tribunal was not satisfied that the applicant was a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

   The Tribunal affirmed the delegate's decision not to grant a protection visa.

   The Tribunal considered the applicant's claims as a whole and found that he did not face a real chance of persecution for reasons of political opinion or religion and that any fears that the applicant may hold in that regard were not well founded…

   The Tribunal:­

   a)        Found that the applicant left Iran using his own passport …;

   b)Found that he made no convention related claims when he first entered Australia but rather, claimed that he had left Iran for a better life and, in describing the problems he faced in Iran, referred primarily to economic problems…;

   c)Found that the reasons given for leaving Iran and coming to Australia in his first interview were the actual reasons he had for leaving Iran on a permanent basis and not the reasons that he later claimed, namely harassment and mistreatment by religious Police or authorities for failing to conform to a strict religious code of dress and behaviour and prevention from conversion to Christianity …;

   d)Accepted his later resiling from his allegation that he was prevented from converting to Christianity and his then assertion that he had an interest in Christianity whilst in Iran but made no attempt to convert whilst in Iran and did not let anyone known of his interest in that regard …;

   e)Accepted that a person in the position of the applicant entering another country would be apprehensive and anxious when facing foreign officials and being questioned about reasons for entering the country with no intention of returning home. It found that with such an intention in mind, and in the light of the cautions put to the applicant at the time of the interview, that the applicant would have at that time provided the strongest possible reasons for his departure from Iran, including the reasons that he would have held for not wanting to return to Iran if he had held such strong reasons, as such detail would have ensured his greatest chance of remaining in Australia …;

   f)Found that his written description of harassment by religious police and his personal account of that harassment were at variance and accepted the applicant's assertion that what had occurred was not what precipitated his departure from Iran…;

   g)Was of the view from the account of the applicant that the difficulties he encountered with the religious police related to what such police considered to be appropriate behaviour in Iran and that their behaviour was directed to all Iranians and was not for a convention reason nor discriminatory …;

   h)Found consistently with matters put to the Tribunal by the applicant that he left Iran on his own passport and that at that time there was no impediment to his departure, nor was he of any concern to the authorities or to anyone in a political sense in Iran…;

   i)Found that he was not pressured into participating in Islamic religious activities or into conforming to the Islamic faith in Iran and that no-one else was aware of his interest in Christianity …;

   j)Found that he left Iran for reasons other than for a fear of persecution for any convention reason and that his interest in Christianity did not exist at the time that he left Iran…;

   k)Found that his claim to have converted to Christianity was developed subsequent to his arrival in Australia to add a convention element to his claim for asylum and that it was implausible that a person would convert to a foreign religion almost immediately upon arriving a new country without having a good understanding of that religion, particularly if they thought that such a conversion would cause difficulties for themselves or members of their family in their home country…;

   i)Accepted that the applicant had attended Mass and Christian religious meetings in the Detention Centre …;

   m)Accepted that the local Priest Father Monaghan was satisfied that the applicant's conversion was genuine…;

   n)        Was not satisfied that the applicant’s conversion was genuine…;

   o)Accepted however that if his conversion to Christianity was genuine, the manner in which he intended to practice his faith would not result in him adopting a high profile or proselytising in Iran;

   p)Considered independent material in relation to the practice of religions other than Islam in Iran and found that the applicant's profile in relation to the manner in which he intended to practice Christianity was in no way similar to people described in the independent material who had been high profile leaders or engaged in proselytising and was unable to be satisfied that the applicant's claim that he would suffer harm amounting to persecution in Iran as a result of his conversion which would lead to a charge of apostasy was a well founded fear …;

   q)Analysed the applicant's claims in relation to his claims as regards his fear concerning the harm that may come to him as a result of his conversion to Christianity against certain country information …;

   r)Found that the applicant does not have a history of facing serious harm in Iran for a convention reason and that he was not of concern to the authorities at the time he left Iran and that he departed legally;

   s)Did not accept that the applicant was a genuine convert to Christianity, but found that even if he was a genuine convert to Christianity, that as a "simple person" he could return to Iran and practice Christianity at the level he currently does in the Detention Centre without a "real chance" of persecution for reasons of religion …;

   t)Taking into all of the applicant's claims, found that he does not face a real chance of persecution for reasons of political opinion or religion and that any fears he may hold in that regard are not well founded … ”

5. In particular, in relation to the question of whether the applicant would suffer persecution on the basis of his alleged conversion to Christianity the Tribunal found:

   “I do not accept that the Applicant is a genuine convert to Christianity but even if I did I find that as a "simple person" he could return to Iran and practise his faith at the level he currently does in the detention centre without a "real chance" of persecution for reasons of  religion.”

6. The decision of the Tribunal in this matter was a “privative clause decision” for the purposes of s 474 of the Act. Section 474 of the Act provides:

   “474 Decisions under Act are final

   (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 any court; and

   (c)is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.

   (2)      In this section:

   ‘privative clause decision’ means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).

   (3)      A reference in this section to a decision includes a reference to the
              following:

   (a)granting, making, suspending, cancelling, revoking or refusing to make an order or determination;

   (b)granting, giving, suspending, cancelling, revoking or refusing to give a certificate, direction, approval, consent or permission (including a visa);

   (c)granting, issuing, suspending, cancelling, revoking or refusing to issue an authority or other instrument.”

7. The powers of this Court on any review are limited in a number of ways. This includes the limitations within s 39B of the Judiciary Act 1903 (Cth) (including whatever limitations are contained within s 75(v) of the Commonwealth Constitution). It also includes the provisions of s 474 of the Act in relation to “privative decisions”. The learned Federal Magistrate noted the limitations upon the jurisdiction to afford judicial review by reason of s 474 of the Act. However, she did not have the benefit of the High Court decisions in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 [2003] HCA 1 (“S134”) and Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 (“S157”).

8. The learned Federal Magistrate described the effect of s 474 of the Act in terms of the decision of this Court in NAAV v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 228 (“NAAV”).  She said that the effect of that decision was that the:

   “… the powers of the Tribunal have been widened such that only a failure to exercise its decision making powers in a bona fide manner now provides grounds for review. That case concerned the operation of Section 474 of the Migration Act 1958 (Cth). It places into the Migration Act a privative clause, which has been interpreted by the High Court in the case of R v Hickman; Ex parte Fox & Clinton [1945] 70 CLR 598 at 616. Dixon J stated the three pre-conditions to the valid exercise of decision making powers to which such a clause applies as:

   a)the decision maker is required to have made a ‘bona fide attempt’ to exercise its power;

   b)the decision ‘relates to the subject matter of the legislation’;

   c)the decision ‘is reasonable [sic] capable of reference to the power given to the decision maker.”

9. In light of the High Court decisions in S134 and S157, the jurisdiction of this Court in judicial review proceedings is probably broader than as described by the Full Court in NAAV and certainly broader than was understood by the learned Federal Magistrate.  It is clear from the High Court decisions that the Court’s jurisdiction is limited to “jurisdictional errors” (S157 at [76]).  In determining whether or not a particular error is a “jurisdictional error” or not it is necessary to have regard to the whole of the Act, including s 474. (See S157 at [77]-[78]).

10. Although the Federal Magistrate was perfectly correct to apply the NAAV test at the time she did so, with hindsight the application of that test was in error. 

11. The appeal notice does not provide any assistance as to what jurisdictional error the Tribunal may have made.  Nor was the appellant able to do so in oral submissions.  The appellant who was unrepresented submitted that at least before the Minister’s delegate there had been confusion by the interpreter.  It is true that the delegate did ask the appellant various questions about the Holy Trinity and the Catholic belief in the Eucharist.  Whether these questions were fair or not and whether they were correctly interpreted or not might well be questioned.  However, there is nothing in the Tribunal’s reasons which suggests that the Tribunal had regard to these matters.  The appellant did not claim that the Tribunal did have regard to them.

12. In this case the principal findings made by the Tribunal were credit findings.  The Tribunal did not accept that the appellant was credit worthy.  Consequently the Tribunal could not be satisfied that the facts as alleged by the appellant either as to the persecution he had suffered in the past or as to his conversion to Christianity were true.  In finding that the appellant was not credit worthy the Tribunal took into account relevant matters.  It did not take into account any irrelevant matters.  In short, there was no jurisdictional error in reaching that conclusion.  It was a necessary consequence of reaching that conclusion that the Tribunal was not satisfied that the appellant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol and that his application for a protection visa should be refused.

13. It may be that some of the analysis by the Tribunal is questionable.  For example, if the Tribunal had found that the appellant had truly converted to Christianity then it is at least arguable that some of the analysis by the Tribunal as to what might happen to him on his return to Iran and whether or not that might constitute persecution could involve a jurisdictional error.  However, there is no jurisdictional error when the relevant analysis is not essential to the decision of the Tribunal.  It was not essential in this case.

14. The appeal is dismissed.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway.

Associate:

Dated:             13 March 2003

Counsel for the Appellant:	The appellant appears in person
Counsel for the Respondent:	Mr MJ Roder
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	13 March 2003
Date of Judgment:	13 March 2003